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Table of Contents

500 – Criminal History, Generally (§4A1.1)

500 – Criminal History, Generally (§4A1.1)
  • 504 Prior Convictions (§4A1.2)
  • 508 Departures for Criminal History (§4A1.3)
  • 525 Career Offenders, “Prior Violent Felony”
  • 530 Criminal Livelihood (§4B1.3)
  • 540 Armed Career Criminal Act (§4B1.4)
  • 520 Career Offenders (§4B1.1)

Back to main table of contents

§514 Cases Rejecting Departures for Criminal History

11th Circuit denies acceptance credit to de­fendants who went to trial and denied illegality. (488) Defen­dants were convicted of entering a naval base to engage in “symbolic disarmament.” At sentencing, the court denied a reduction for acceptance of responsibility under § 3E1.1, despite defendants’ argument that they had gone to trial only to preserve a defense under the Religious Freedom Restoration Act. The Eleventh Circuit found no clear error, noting that defendants continued to assert that their actions were legal. U.S. v. Grady, __ F.4th __ (11th Cir. Nov. 22, 2021) No. 20-14341.

5th Circuit allows upward variance despite failure to  say criminal history was underrepresented. (514) Defendant was convicted of attempted enticement of a minor to engage in sexual activity. At sentencing, the district court varied upward based on defendant’s prior conduct, but did not perform a calculation under § 4A1.3, which governs upward departures based on underrepre­sented criminal history. On appeal, the Fifth Circuit af­firmed, holding that the Sentencing Commission had not altered prior cases holding that a district court need not recite that the defendant’s criminal history was under­represented by the guidelines calculation before varying under § 4A1.3. U.S. v. Peterson, __ F.3d __ (5th Cir. Oct. 6, 2020) No. 19-11143.

1st Circuit reverses upward variance that was based on unsupported arrests. (514) Defendant pleaded guilty to possession of a firearm by a convicted felon. He fell into criminal history category IV, although he had been convicted 20 times and had been arrested at least 44 times. The district court found that defendant’s criminal history category under-represented his criminal history, and varied upward from the guidelines range of 37 to 46 months to a sentence of 72 months. The First Circuit vacated and remanded for resentencing, holding that it was improper to rely on arrests that were not supported by independent proof of conduct. The mandate required the district court to rely only on defendant’s prior con­victions. U.S. v. Marrero-Pérez, __ F.3d __ (1st Cir. Jan. 25, 2019) No. 17-1346.

7th Circuit counts prior conviction even though charge was filed 19 years earlier. (514) Defendant pleaded guilty to conspiracy to distribute more than 100 grams of heroin. At sentencing, the district court calcu­lated defendant’s criminal history score using a charge from 1990 for which defendant had not been arrested and convicted until 2009. Defendant argued that this convic­tion would have been too old to count in his criminal history score if he had been arrested immediately after being charged, and therefore his criminal history was overrepresented. The Seventh Circuit rejected the argument, noting that the reason for the delay was that defendant was a fugitive. Failing to count the conviction would reward defendant’s flight from justice. U.S. v. Bustos, __ F.3d __ (7th Cir. Jan. 10, 2019) No. 18-1388

7th Circuit says criminal history containing mostly driving offenses was not overstated. (514)(742) Defen­dant pled guilty to cocaine base and firearms charges. He fell within Criminal History III, with a 140-175 month guideline range. Defense counsel argued that Criminal History II would be more appropriate, with a guidelines range of 97-121 months, noting that defendant had a single felony when he was 18 years old, and all of his other criminal history points were because of driving offenses such as driving on a suspended license, as well as possession of marijuana and unlawful use of a weapon misdemeanors. The district court sentenced him to 132 months, stating in part that defendant got stopped “for a reason” and “all they could get you on was driving on a suspended license.” Defendant argued that there was no reason to assume that he had engaged in other criminal activity. The Seventh Circuit found no error, agreeing that the status of a person’s license is not apparent prior to the stop, so the district court could properly conclude that the initial stop was based on a different criminal concern.. In any event, the district court did impose a below-guidelines sentence based in part on defendant’s argument. U.S. v. Freeman, 843 F.3d 315 (7th Cir. 2016).

Supreme Court reverses departure for low likelihood of recidivism in Rodney King case. (514) The district court departed downward in sentencing the officers who were convicted of beating Rodney King on the ground that the officers were particularly unlikely to commit crimes in the future, and the need to protect the public from their future criminal conduct was absent “to a degree not contemplated by the guide­lines.” The Supreme Court held that this was an abuse of discretion because guideline § 4A1.3 specifically states that “a departure below the lower limit of the guideline range for criminal history category I on the basis of the adequacy of criminal history cannot be appropriate.” Therefore low likelihood of recidivism is not a basis for departure. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).

1st Circuit upholds refusal to grant criminal history departure. (514) Defendant did not challenge the district court’s criminal history calculation, but argued that a downward departure was appropriate because his score significantly over-represented his criminal history. The district court considered this argument at sentencing and came to the opposite conclusion: “I find that the criminal history here does not overrepresent in light of the defendant’s history of recurrent criminal law viola­tions, despite sentences that have been imposed which involve custody of either small amounts or large amounts.” The First Circuit affirmed. The district court did not commit an error of any sort; it simply disagreed with defendant about the seriousness of his criminal history. This did not approach an abuse of discretion, and was not grounds for reversal. U.S. v. Almeida, 710 F.3d 437 (1st Cir. 2014).

1st Circuit affirms court’s refusal to depart down­ward for crimi­nal history. (514) Defen­dant was sentenced to 76 months, which fell within his 70-87 month advisory range. He argued that the district court should have departed downward under § 4A1.3(b)(1), claiming that the one point assigned to his marijuana offense was in error, and that the court should have found excessive the two points for his cocaine conviction because it occurred over 12 years earlier. The First Circuit affirmed the sentence. Defendant’s argument about the marijuana offense was a “dead end,” because subtracting one point would not have altered his criminal history cate­gory. The panel also rejected defendant’s claim with regard to the cocaine and marijuana offenses. A district court’s discretionary decision not to depart from the Guidelines is reviewed for rea­son­ableness. The district court met this standard. It considered defendant’s arguments but explained that a departure was unwarrant­ed because of defen­dant’s criminal history, the serious­­ness of his offenses, and the timing of their occurrence. U.S. v. Battle, 637 F.3d 44 (1st Cir. 2011).

 

1st Circuit remands where court did not explain why committing offense while under indictment merited four to six criminal history points. (514) Defendant had no criminal history points, resulting in a criminal history category of I. In departing upward to category III, the district court relied on the fact that defendant committed the instant robbery while under indictment for murder. The First Circuit found that it was unable to evaluate the reasonableness of the extent of the departure because the court did not explain why such an increase was appropriate. The upward departure essentially added four to six points to defendant’s criminal history total. Yet under the guidelines, if a defendant commits a robbery while under “any criminal justice sentence” only two points would have been added to his criminal history score. Without an explanation of why the court chose a departure of this extent, the panel could not conclude that it was justified. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).

 

1st Circuit holds that variance to 8 times maximum guideline range was unreasonable. (514) Defendant was convicted of using a forged immigration document to try to enter the U.S. Although his guideline range was 0-6 months, the district court imposed a 48-month sentence. The First Circuit reversed, finding the court’s explana­tion for such a large variation to be inadequate. The fact that defendant had previously been deported from the U.S. was accounted for by the two-level enhancement in § 2L2.2(b)(1). The second factor cited by the court, defendant’s arrest in 1991 and the outstanding bench warrant, was also insufficient to support the increase. The guidelines contain a policy statement that permits a court to consider prior significant adult criminal not resulting in a criminal conviction, but prohibits courts from departing based solely on a defendant’s arrest record. U.S. v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006).

 

1st Circuit holds that designation as career offender did not overstate criminal history. (514) Defendant had a long history of convictions in both state and federal courts dating from 1983 to 1995. He qualified as a career offender based on three of these convictions: attempt to commit larceny from a person, armed home invasion and threats with intent to extort, and witness intimidation. He argued that the less severe nature of his qualifying crimes and their remoteness in time provided grounds for a downward criminal history departure, and that the district court erred in concluded that it lacked the authority to depart downward. The First Circuit ruled that even if the court was authorized to depart based on the “smallness” of qualifying offense and their age, defendant would not qualify. Even assuming that defendant’s qualifying convictions, when considered alone, were so trivial and remote as to render defendant’s case exceptional, these were not his only convictions. Defendant had previously been convicted of six other crimes, many of which were committed while he was on probation. Although many of these convictions would not qualify him as a career offender, they clearly showed that his designation as a career offender did not overstate his criminal history. Moreover, although a considerable amount of time had passed since defendant’s last conviction, defendant was imprisoned during much of that time. U.S. v. Gendraw, 337 F.3d 70 (1st Cir. 2003).

 

1st Circuit holds that downward departure from career offender guideline would be abuse of discretion. (514) Defendant argued that the district court mistakenly assumed that it lacked the discretionary power to depart downward in a career offender case. Although the court’s comments were ambiguous, the First Circuit found no remand necessary because a § 4A1.3 departure would have been an abuse of discretion. A defendant bears the burden of showing that his drug rehabilitation efforts are exceptional. Defendant’s efforts to comply with two short-lived unsuccessful court-imposed drug-treatment regimens utterly failed to meet this benchmark. More importantly, whatever mitigating factors may have been present, other elements of defendant’s criminal history placed him squarely within the career offender heartland. The comparatively lenient sentences imposed upon defendant in the past generated little, if any, deterrent effect. Defendant had a total of eight serious felonies, including larceny, armed assault, and distributing drugs within a school zone. He accumulated four drug convictions during the eight-year period between 1993 and 2001. Further, at the time he was arrested, he was confronting drug charges in state court. Under these circumstances, the court could not have concluded that defendant was other than a prototypical recidivist targeted by the career offender guideline. U.S. v. Mayes, 332 F.3d 34 (1st Cir. 2003).

 

1st Circuit says counsel not ineffective in failing to request criminal history departure. (514) Defen­dant argued that his attorney was ineffective in failing to request a § 4A1.3 downward departure based on his overstated criminal history category. Defendant did not raise this issue in his § 2255 petition and did so for the first time on appeal of his conviction. Thus, the First Circuit found it “quite unlikely” that the issue had been adequately preserved,” particularly since even on appeal it was only advanced in a minimal way by a few sentences at the very end of the opening brief. Moreover, even if the issue were adequately preserved or could be raised under a plain error standard, there was no basis in the record to conclude that counsel was ineffec­tive for failing to raise this claim. Although a sentencing court may invoke § 4A1.3 to depart downward from the career offender category if it concludes that the category inaccurately reflected the defendant’s actual criminal history, nothing in the record supported such a departure. Defendant not only had two prior felony convictions, but committed the final charged offense only a year and a half after he was released from prison but while still on parole for federal drug trafficking. U.S. v. Hoyle, 237 F.3d 1 (1st Cir. 2001).

 

1st Circuit, en banc, asks for clarification on whether court can depart for “small players.” (514) Defendant was convicted of drug charges. Because of two prior state drug offenses, she was sentenced as a career offender. At sentencing, she had requested a downward departure because she was a “small player,” i.e., the amount of drugs and her role in the past offenses had been small. On appeal, a First Circuit panel remanded for clarification of the court’s basis in light of a recent case holding that § 4A1.3 applies to career offenders. On remand, the court again refused to depart because it believed that defendant’s alleged “small player status” was a forbidden factor for departure. On appeal, the Tenth Circuit, en banc, affirmed the district court’s refusal to depart. However, it asked the Sentencing Commission to clarify whether the guidelines contain a categorical ban on downward depar­tures for those career offenders whose past offenses involved a small quantity of drugs and who held small roles. Half the court believed that such departures are banned, while the other half believed that “smallness” may form the basis for a departure. U.S. v. Perez, 160 F.3d 87 (1st Cir. 1998) (en banc).

 

1st Circuit rejects departure above criminal history category VI. (514) The district court departed upward from eight months to twenty-four months, finding defendant’s criminal history inadequately represented by category III.  The 1st Circuit found proper grounds for departure, but rejected the extent of the departure.  Defendant was a well-known alien smuggler, and his criminal history score only took into account one of his prior illegal acts.   But the maximum sentence for a defendant in category VI, the highest category, was 18 months.  A court should depart beyond category VI only for an “egregious, serious criminal record.”  Here, although the sentencing court explained why it departed, it did not explain why a departure to categories IV, V or VI was not enough.  Moreover, the record that was silent as to the specifics of defendant’s past bad behavior.  U.S. v. Mendez-Colon, 15 F.3d 188 (1st Cir. 1994).

 

2nd Circuit says Internet chats not sufficient evidence of past improper relationship to support criminal history departure. (514) Defendant traveled to New York to have sexual relations with a boy he had chatted with over the Internet. The “boy” was in reality an undercover agent. Although the case was being remanded under U.S. v. Crosby, 397 F.3d 103 (2d Cir. 2005), abrogation recognized by U.S. v. Lake, 419 F.3d 111 (3d Cir. 2005), the Second Circuit still considered whether the grounds relied upon by the court for departure from criminal history category III to IV were proper. The district court properly considered defendant’s previous parole violations, his failure to register as a sex offender when he moved to a new residence, and his prior attempts to arrange sexual liaisons with minors. However, the court improperly relied on defendant’s alleged previous sexual relationship with a teenage boy. The only evidence of that relationship was in the chats between defendant and the undercover agent, and defendant claimed he made up the story to entice the victim. The contents of Internet chats alone are not the type of “reliable information” upon which a § 4A1.3 departure may be based. The alleged relationship was not established by reliable information, and thus could not properly form the basis for a § 4A1.3 departure. On remand, the district court can consider whether it would have sentenced defendant differently had it not relied on this improper ground. U.S. v. Weisser, 417 F.3d 336 (2d Cir. 2005).

 

2nd Circuit refuses to depart where defendant fell within category VI regardless of ACCA status. (514) Defendant argued that the district court erred when it found that it lacked the authority to depart downward based on defendant’s young age (14 to 15 years old) when he committed the three armed robberies that served as the predicate for his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). However, the district court found that defendant fell into criminal history category VI, the highest possible level, on the basis of six other prior convictions, committed when defendant was between age 20 and 31. The three predicate armed robberies were not even included as part of defendant’s criminal history because, under § 4A1.2(e), they occurred too long ago to be included in the calculation of criminal history. The Court’s conclusion that the young age at which defendant committed his three predicate crimes under § 924(e) was not a proper basis for departure was not material because it was offered merely as an alternative holding. The court independently, and primarily, refused to depart because it concluded that the three predicate armed robberies were entirely “irrelevant to … the suitability of the defendant’s criminal history category,” as part of a horizontal departure analysis. The Second Circuit held that the district court did not err in refusing to grant a horizontal downward departure on that basis. U.S. v. Belk, 346 F.3d 305 (2d Cir. 2003).

 

2nd Circuit says bartering of guns for drugs, while not basis for criminal history departure, could support offense level departure. (514) Defendant was convicted of gun-running offenses and other weapons offenses. In departing upward from criminal history category from II to IV under § 4A1.3, the judge relied on defendant’s possession of a .357 magnum revolver, which had been the basis of a dismissed charge in South Carolina, and his bartering of guns for drugs. Defendant contended that this horizontal departure was improper because both acts were part of his relevant criminal conduct. The government conceded that the horizontal departure was improper, but contended that on remand the bartering of guns for drugs could be the basis of a vertical departure under § 5K2.0. The Second Circuit agreed. The bartering of guns for drugs, if not technically “relevant conduct” for purposes of an offense-specific adjustment, was sufficiently related to the offense to make it also unavailable as a basis for a horizontal departure. Nevertheless, such conduct remained available as a basis for a vertical departure to increase the offense level because it played no part in setting the base offense level of any of the offense-specific adjustments. Simply because the court used the bartering activity for the wrong kind of departure was not a reason to preclude its use on remand for a permissible type of departure. U.S. v. Fuller, 332 F.3d 60 (2d Cir. 2003).

 

2nd Circuit remands where court failed to make findings on why criminal history was overrepresented. (514) The district court departed downward from Criminal History Category II to I, finding that defendant’s criminal history was “overrepresented” and was “better represented by Criminal History Category I.” It did not make any findings, however, to explain this conclusion. Absent some explanation of its reasoning, the Second Circuit found that it was unable to assess whether the district court abused its discretion in granting a departure on this ground. Thus, it remanded to the district court for specific findings on this issue. U.S. v. Thorn, 317 F.3d 107 (2d Cir. 2003).

 

2nd Circuit reverses downward departure based on lesser harm, family circumstances, and criminal history. (514) Defendant pled guilty to illegal reentry following deportation. The district court departed downward on three grounds: lesser harm, § 5K2.11, exceptional family circumstances, § 5K2.0, and overstated criminal history, § 4A1.3. The Second Circuit reversed. Defendant was not eligible for a lesser harm departure. This ground for departure was based on the judge’s finding that defendant had not illegally reentered the country for the purpose of committing another crime. However, the “harm” from the crime of illegal reentry is the illegal reentry itself. A deported alien reentering the country illegally, even without the intent to commit a crime, has done the essence of what the statute is intended to prohibit. The court made no findings that would support a departure for exceptional family circumstances, and the evidence provided no basis for such a finding. The illness of defendant’s father, residing in this country, also did not provide a basis for departure. Regardless of the length of defendant’s sentence, he would not be able to care for his father, because upon his release, defendant will be deported. Finally, although defendant fell within criminal history category III, he had only had one prior conviction. Exceptional circumstances would have to be shown to warrant a horizontal departures to reduce the criminal history for a defendant with only one prior conviction. U.S. v. Carrasco, 313 F.3d 750 (2d Cir. 2002).

 

2nd Circuit rejects downward departure below CHC I based on minor nature of criminal history. (514) Defendant argued that the district court imposed his sentence based on the mistaken belief that it lacked the power under USSG § 4A1.3 to depart below the 70-87 month imprisonment range stated in the guidelines for a criminal history category I with an offense level of 27. The Second Circuit held that downward departure below the applicable guideline range for criminal history I based on the minor nature of defendant’s criminal history was not permissible. Section 4A1.3 “is not symmetrical. The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the Guidelines range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate.” U.S. v. Sherpa, 265 F.3d 144 (2d Cir. 2001).

 

2nd Circuit holds that consideration of arrest record in refusing to depart downward was not plain error. (514) Defendant moved for a downward departure from the career offender guideline, noting that despite his lengthy criminal history, he had stayed clear of both drugs and the criminal justice system for almost six years, until a series of events led to the instant bank robbery. After “agonizing” over the request, the judge ultimately declined to depart, citing his lengthy criminal record, including “page after page of convictions, and parole revocations and violations, and jail escapes, and other arrests.” Defen­dant argued for the first time on appeal that the district court violated the law by considering his past arrest record when it declined to depart. Guideline § 4A1.3 bars a court from considering a prior arrest record. However, no Second Circuit cases address whether the § 4A1.3 prohibition applies to refusals to depart downward as well as the decision to depart upward, and defendant was unable to cite a case in which use of such records in a decision not to depart was held to be error. In light of this, and without deciding whether a sentencing court’s use of prior arrest records in a decision not to depart is error, the Second Circuit ruled that the consideration of the arrest records here was not plain error. U.S. v. Miller, 263 F.3d 1 (2d Cir. 2001).

 

2nd Circuit rejects routine departures for “street-level” drug sellers, but says length of prior sentences may be considered. (514) The district court departed from Criminal History Category (CHC) VI to V because defendant was “a street seller” of narcotics and the court felt it was unfair to equate two prior convictions for street-level drug sales with two prior convictions for wholesale drug sales. The Second Circuit rejected a general rule authorizing downward departures from CHC VI where a defendant’s prior convictions involved only street-level drug sales. Departures are to be made on the basis of individualized consideration of a defendant’s case. Never­theless, although the district court erred in applying a generalized “street-level” drug selling exception, on remand the district court may consider factors relevant to assessing whether CHC VI overrepresented defendant’s criminal history. Such factors might include the amount of drugs involved in his prior offenses, his role in those offenses, the sentences previously imposed, and the amount of time previously served. Although prior small sentences cannot justify routine departures for all street-sellers, the relationship between a particular defendant’s sentencing range and the time he served on his prior sentence might, in combination with other factors, warrant a departure. A “large disparity … might indicate that the career offender sentence provides a deterrent effect so in excess of what is required in light of the prior sentences and especially the time served on those sentences as to constitute a mitigating circumstance …” U.S. v. Mishoe, 241 F.3d 214 (2d Cir. 2001).

 

2nd Circuit reverses downward departure for prior lenient sentences, co-defendant’s sentence, drug quantity, stable family, and eligibility for deportation. (514) Defendant pled guilty to distributing cocaine. The district court departed downward from the career offender guideline, citing the leniency of defendant’s prior sentence, the lighter sentence received by a co-defendant, the small quantity of drugs involved in the offense, defendant’s stable family relationship, and defendant’s eligibility for deportation. The Second Circuit reversed. The first three grounds were impermissible as a matter of law. A downward departure based on a prior lenient sentence conflicts with § 4A1.3, which states that a prior lenient sentence for a serious offense may warrant an upward departure. Disparity between the sentences of individual co-defendants and a small quantity of drugs are not proper bases for departure. Family circumstances are a discouraged basis for departure unless the hardship would be “exceptional.” The existence of a stable family is not extraordinary and does not satisfy the exceptional hardship criterion. Deportation alone does not constitute an extraordinary consequence that would justify a downward departure. U.S. v. Tejeda, 146 F.3d 84 (2d Cir. 1998).

 

2nd Circuit rejects upward departure based on uncharged dissimilar foreign crimes. (514) Defendant pled guilty to possessing fraudulent alien registration cards. The district court departed from criminal history category I to IV based on evidence that defendant, while a Colombian police officer, had been a paid assassin and security guard for a cocaine cartel. The Second Circuit held that the upward departure could not properly be based on dissimilar foreign conduct for which defendant had not been convicted. No guideline section authorizes the use of unrelated, uncharged foreign criminal conduct for a criminal history departure. Section 4A1.2(h) only permits consideration of sentences resulting from foreign convictions as grounds for departure under § 4A1.3. It is true that under subsection (e), prior similar adult criminal conduct can be considered. But even if this were extended to conduct in a foreign country, the conduct must be “similar,” and defendant’s alleged acts of homicide, terrorism and drug trafficking in Colombia were not “similar” to the possession of false immigration documents in the U.S. U.S. v. Chunza-Plazas, 45 F.3d 51 (2d Cir. 1995).

 

2nd Circuit rejects pending sentencing in federal case as grounds for upward depar­ture. (514) The district court initially sug­gested that a departure was warranted be­cause defendant was on bail and was sup­posed to be coop­erating with the government at the time the offense was committed.  These would be proper grounds for an upward de­parture.  However, the government also urged a departure on the ground that defendant had yet to be sentenced on a prior federal offense.  This was an improper ground for departure and it was unclear from the court’s state­ments whether it adopted this reason.  Since both of defendant’s of­fenses were federal, adoption of the government’s reasoning would result in double-counting.  Cases up­holding criminal history departures for de­fendants awaiting sentencing on other crimes have involved defendants who were to be sen­tenced in state court for state offenses.  The cases was remanded for an explanation of the basis for the departure. U.S. v. Stevens, 985 F.2d 1175 (2nd Cir. 1993).

 

2nd Circuit rejects relevant conduct sur­rounding instant of­fense as grounds for criminal history departure. (514) De­fendant fell within criminal history category IV.  The district court departed upward to criminal his­tory category VI after considering the relevant conduct surrounding the offense of conviction.  The district court found that it should sentence defendant as if he were a career offender be­cause he had done everything necessary to qualify as a career offender.  The 2nd Circuit reversed, holding that it was improper to con­sider relevant conduct surrounding the offense of convic­tion as grounds for a criminal history departure.  Relevant conduct may be consid­ered in determining a defendant’s criminal history only with respect to defendant’s prior con­victions.  U.S. v. Hernandez, 941 F.2d 133 (2nd Cir. 1991).

 

2nd Circuit reverses upward departure based on defen­dant’s “narrowly missing” higher criminal history cate­gory. (514) The district court departed upward in part because defen­dant’s 1976 conviction narrowly missed being counted in his crimi­nal history.  The 2nd Cir­cuit held that this was not a proper grounds for departure:  “The fact that a defendant falls just below a line leading to a harsher sentence is by itself no more grounds for departing upward than the fact that a de­fendant falls just above the line is by itself grounds for de­parting down­ward.”  U.S. v. Uccio, 917 F.2d 80 (2nd Cir. 1990).

 

2nd Circuit reverses upward departure based on defen­dant’s “narrowly missing” higher criminal history cate­gory. (514) The district court departed upward because defen­dant’s 1976 conviction narrowly missed being counted in his crimi­nal history.  The 2nd Cir­cuit held that this was not a proper basis for de­parture:  “The fact that a defendant falls just below a line leading to a harsher sentence is by itself no more grounds for departing upward than the fact that a de­fendant falls just above the line is by itself grounds for de­parting down­ward.”  U.S. v. Uccio, 917 F.2d 80 (2nd Cir. 1990).

 

2nd Circuit reverses upward departure in firearms case. (514) Defendant was convicted of conspiracy to deal in firearms without a li­cense after he purchased 177 firearms and resold them without a license to per­sons whom he knew could not lawfully possess such firearms.  The district court departed upward from the sentencing guidelines on the ground of endangerment to public health and safety under guideline § 5K2.14.  The 2nd Cir­cuit reversed the de­parture, noting that the num­ber of weapons sold was ac­counted for when the defen­dant received a five level en­hancement under § 2K2.3(b)(1)(E).  The court also found that the type of firearms was adequately considered by the guidelines.  On the other hand, the court found that a depar­ture could be justified on the ground that defen­dant knew that some of his customers were drug traf­fickers and others who would use the firearms in their criminal ac­tivities.  This basis for departure however, was limited to only a few of the firearms defendant pur­chased and sold.  The case was remanded for resen­tencing.  U.S. v. Schu­lar, 907 F.2d 294 (2nd Cir. 1990).

 

2nd Circuit remands criminal history depar­ture for failure to use a particular category as a guide. (514) Defendant was convicted of armed bank robbery.  The district court de­parted upward from 46 months to 10 years based upon the fact that defendant had pled guilty in 1987 to three of ten bank robberies and received a probationary sentence.  The court noted that defendant’s criminal history category was the same as if he had committed only one robbery.  The 8th Circuit was not prepared to say that the departure was un­reasonable, but held that the district court failed to follow the proce­dure prescribed by the guidelines.  Under § 4A1.3, a judge departing upward because of under-repre­sented criminal history must refer to the crimi­nal history cate­gories.  Since the district court here did not consider any criminal history cat­egories higher than the defendant’s and did not use a particular category as a guide, the case was remanded for resentencing.  U.S. v. Sappe, 898 F.2d 878 (2nd Cir. 1990).

 

2nd Circuit rules upward departure based upon seri­ousness of prior of­fen­ses requires strict adherence to guideline procedures. (514) Defendant pled guilty to one count of import­ing co­caine.  His adjusted offense level was 20, and his criminal history category was I, leading to a sentence of 33-41 months, which was the range agreed upon in the plea agreement.  However, the sentencing court imposed a sen­tence of 60 months, which corre­sponded to a criminal history category of IV.  Although § 4A1.B allows a departure to reflect the serious­ness of the defendant’s past conduct, the trial court is re­quired to use a criminal history category which ade­quately reflects the defen­dant’s past record.  Because the sentencing court failed to con­sider whether levels II or III would adequately reflect the seriousness of the defen­dant’s past criminal history, the sentence was un­lawful.  U.S. v. Cervantes, 878 F.2d 50 (2nd Cir. 1989).

 

2nd Circuit holds departures based upon criminal his­tory require strict findings by sen­tencing court. (514) Departing from the guide­line range applicable to a drug smuggler, the sen­tencing court found that a criminal his­tory category of I failed to adequately reflect the defen­dant’s criminal his­tory.  It noted simply that the defen­dant had a “pretty bad record.”  The Second Circuit held that this statement was not an explicit articulation of rea­sons as required by 18 U.S.C. § 3553(c)(2) and § 4A1.3.  Thus, the sentence was unlaw­ful under 18 U.S.C. § 3742(d)(1).  U.S. v. Cervantes, 878 F.2d 50 (2nd Cir. 1989).

 

3rd Circuit upholds 22-year sentence for member of violent street gang as reasonable. (514) Based on his involvement with a local sect of a violent nationwide street gang, defendant was convicted of various racketeering, drug, firearms and violence crime offenses. He argued that his 22-year sentence was procedurally unreasonable because the district court never formally ruled on his motion for a downward departure based on an overstatement of his criminal history. The Third Circuit found no error. Although the court did not explicitly deny defendant’s motion, it was fully informed on the issue and did not grant his requested departure. There was nothing in the record to indicate that the court was acting under the mistaken belief that it lacked the discretion to reduce his criminal history category under the evidence before it. The court gave “meaningful consideration” to the disparity between the sentences of defendant and his co-defendant Wright, noting that Wright and defendant were not similarly situated in all respects. The 22-year sentence was substantively reasonable. The court extensively discussed the reasons underlying his sentence, finding it was connected to the seriousness of the crime and the “awful society impact” of the gang on the community. U.S. v. Jones, 566 F.3d 353 (3d Cir. 2009).

 

3rd Circuit reverses where court speculated as to why arrests did not lead to convictions. (514) Defen­dants pled guilty to robbery and firearms charges. Neither defendant had any prior adult convictions, but their PSRs listed several prior arrests, including a 2004 arrest for armed robbery that was “nol prossed.” Although no one at sentencing realized it, the nol prossed robbery charges arose from the same robbery for which they were being sentenced. The district court speculated that the only reason that defendants’ prior arrests had not resulted in convictions was because of the “breakdowns” in the state court system and not because of innocence. The district court found that defendants’ criminal his­tories were understated, and sentenced them to 10 years. The Third Circuit held that the district court’s speculation as to why defendants’ prior arrests did not result in prior convictions violated defendants’ due process rights to be sentenced based on reliable informa­tion. The court assumed that the only reason defendants had no adult convictions was because of breakdowns in the state court system, but there was no evidence in the record to support that finding. Moreover, resentencing would be required even without the speculation because the court improperly treated the 2004 arrest as a separate offense. U.S. v. Berry, 553 F.3d 273 (3d Cir. 2009).

 

3rd Circuit says court erred by departing two criminal history categories without considering intermediate category. (514) In sentencing, the district court departed upward from Criminal History Category I to Category III because it believed that Category I underrepresented defendant’s criminal history and likelihood of committing future crimes. The Third Circuit held that the court erred in departing by two criminal history categories without adequately considering the intervening criminal history category. The court was justifiably concerned about defendant’s extensive molestation of children in the past and his likelihood of committing such crimes in the future, especially in light of his recent activity in babysitting and taking nude photos of young boys. Unfortunately, the court failed to follow the procedures set forth under § 4A1.3 for departing in such cases. If a court is considering departing by more than one category, it is “obliged to proceed sequentially,” and it “may not move to the next higher category” before it finds that all lesser categories are inadequate. The sentencing court’s reasons for rejecting each lesser category must be clear from the record as a whole. A departure to Category III may be proper; however, on remand, the court must make it clear why a departure to Category II is inadequate. U.S. v. Freeman, 316 F.3d 386 (3d Cir. 2003).

 

3rd Circuit rejects departure where court failed to proceed sequentially to next criminal history category. (514) The district court departed upward from criminal history category I to category III because it believed defendant’s recent brushes with the law in an 18-month period revealed an “evolution” not sufficiently reflected in category I (he had a recent Accelerated Rehabilitative Discharge, ARD, for a robbery, and a pending charge of auto theft). The Third Circuit ruled that the district court erred by failing to proceed sequentially in increasing defendant’s criminal history category. In determining which category best represents the defendant’s criminal history, the court must proceed sequentially through categories, and must not move to the next category until it has found that a prior category still failed to adequately reflect the seriousness of the defendant’s history. U.S. v. Hickman, 991 F.2d 1110 (3d Cir. 1993). Instead of following this procedure, the district court referenced a hypothetical scenario in the PSR: if defendant had a conviction instead of the ARD, then he would have received points for the conviction, and additional points for committing the current offense while on probation, pushing his category to III. This “what if” scenario could not be used as a replacement for the required analysis. U.S. v. Cicirello, 301 F.3d 135 (3d Cir. 2002).

 

3rd Circuit reverses for failure to explain why lower criminal history categories were “too lenient.” (514) Defendant had only one criminal history point, but he was charged in four pending state prosecutions, involving murder, assault and multiple counts of robbery. Defendant confessed his involvement in all pending charges, and admitted he had been present during a drug-related murder. The district court departed upward from criminal history category I to VI, stating that categories II through V were “too lenient.” The Third Circuit held this statement inadequate to satisfy § 4A1.3. First, it suggested the court inappropriately focused on the resulting sentence, rather than finding a criminal history category covering defendants with criminal histories most closely resembling defendant’s. Second, the court’s statement was too conclusory to permit the appellate court to perform its review function. It would be reasonable for the court to consider what defendant’s criminal history category would be if he were convicted of the pending crimes. U.S. v. Harris, 44 F.3d 1206 (3d Cir. 1995).

 

3rd Circuit rejects offense level increase based on criminal history. (514) The dis­trict court found defendant’s criminal history category did not adequately reflect the scope of his criminal activities, and departed up­ward under section 4A1.3. by increasing his offense level from 13 to 22.  The 3rd Circuit reversed.  An upward departure under sec­tion 4A1.3 must be calculated by stepping up the criminal history category, not by increas­ing the base offense level.  U.S. v. Harvey, 2 F.3d 1318 (3rd Cir. 1993).

 

3rd Circuit says court must consider each suc­ceeding level of criminal history before departing. (514) Defendant’s guideline range was 18 to 24 months.  The district court de­termined that his criminal history category of III did not adequately represent his long his­tory of similar conduct, and imposed a 48-month sentence by “doubling the top of the guideline range.”  The court gave no other expla­nation.  The 3rd Circuit remanded, holding that in departing upward under sec­tion 4A1.3, a court must determine which crimi­nal history category best rep­resents a defendant’s prior history by sequentially con­sidering each suc­ceeding criminal history cate­gory.  Here, the district court in effect jumped more than three criminal history cat­egories without going through the ratcheting procedure described in the guidelines.  For departures above category VI, the court should also analyze the nature of the prior of­fenses, not simply their number. U.S. v. Hickman, 991 F.2d 1110 (3rd Cir. 1993).

 

3rd Circuit rejects upward departure based upon ju­venile crimes not specified in section 4A1.2(d). (514) The district court departed upward in part be­cause no points were added for two burglaries defen­dant committed as a juvenile.  The 3rd Circuit, follow­ing the D.C. Circuit’s opinion in U.S. v. Samuels, 938 F.2d 210 (D.C. Cir. 1991), held that a court may not depart upward based on juvenile crimes not specified in sec­tion 4A1.2(d).  Under sec­tion 4A1.2(d), only three types of juvenile convictions can be considered in the calculation of a defendant’s criminal history.  The guidelines specifically allow upward departures based on foreign of­fenses, tribal offenses, and expunged convic­tions, all of which are not counted, but no provi­sion is made for uncount­able juvenile convictions.  However, a departure would be appropriate if the ju­venile convictions were for conduct similar to the in­stant offense.  To the ex­tent the 7th Circuit’s recent decision in U.S. v. Gammon, 961 F.2d 103 (7th Cir. 1992) ap­proves departures based on non­similar juvenile con­victions, the 3rd Circuit disagreed with the decision.  U.S. v. Thomas, 961 F.2d 1110 (3rd Cir. 1992).

 

3rd Circuit says criminal history category did not under represent likelihood of re­cidivism. (514) The district court de­parted upward from criminal history category VI based in part on defendant’s likelihood of recidi­vism.  The 3rd Circuit rejected this as a ground for departure.  Defendant’s previous sentences did not resemble any of the exam­ples set forth in the guide­lines as situations where a departure might be justi­fied:  there was no evidence that defendant’s pre­vious adult convictions were lightly punished, or so similar to the instant offense as to justify an upward depar­ture, and his 15 criminal his­tory points did not greatly exceed the 13 point minimum for criminal history category VI.  The court did not state why it concluded that defendant’s 15 criminal history points significantly underrepresented the likelihood of re­cidivism.  U.S. v. Thomas, 961 F.2d 1110 (3rd Cir. 1992).

 

3rd Circuit rejects parole revocation as basis for upward departure. (514) The dis­trict court de­parted upward in part because defendant had his pa­role re­voked on at least two occasions.  The 3rd Cir­cuit re­jected this as a ground for departure, ruling that the sen­tencing commission adequately provided for pa­role revocation in the calculation of crimi­nal history points.  Note 11 to guideline sec­tion 4A1.2 specifies that the original sentence and the sentence imposed after probation is revoked are counted as if they were one sen­tence.  By this approach, no more than three points will be assessed for a single convic­tion, even if probation was subsequently revoked.  The presen­tence report assessed three points for both of defen­dant’s sentences in which parole was re­voked.  The appellate court did state that an upward departure based upon parole revocation might be justified in some circumstances, such as where a defendant has a long history of violating parole.  U.S. v. Thomas, 961 F.2d 1110 (3rd Cir. 1992).

 

4th Circuit finds criminal history departure reasonable but remands for use of incremental approach. (514) Defendant was convicted of credit card fraud, in violation of 18 U.S.C. § 1029(a)(2). His offense level was 16, and he fell into criminal history category VI, for an advisory guidelines range of 46-57 months’ imprisonment. At sentencing, the district court found that defen­dant had 23 criminal history points above the 13 points needed to place him in category VI. Defendant did not receive criminal history points for 9 older offenses and for at least 16 arrests that did not result in conviction. The district court concluded that defendant’s criminal history score substantially under-represented his prior criminal conduct and departed upward to a sentence of 105 months. The Fourth Circuit held that an upward departure based on defendant’s criminal history was “undeniably reasonable.” The court noted, however, that a court departing based on a defen­dant’s criminal history must move incremen­tally up through higher offense levels, finding that the prior category does provide a sentence that ade­quate­ly reflects the seriousness of defendant’s conduct. Because the district court did not use that incremental approach, the Court of Appeals vacated the sentence and remanded. U.S. v. Dalton, 477 F.3d 195 (4th Cir. 2007).

 

4th Circuit holds that career offender status did not overstate criminal history. (514) Defendant quali­fied as a career offender, and the district court departed downward, finding that this classification overstated the seriousness of his criminal history. The Fourth Circuit reversed, finding that defendant was “exactly the type of person to whom the career offender classification is intended to apply.” Defendant was entrenched in the drug trade since at least 1990. He committed two serious drug offense in late 1990 and early 1991, for which he received a combined sentence of 10 years of incarceration, all of which was suspended, along with a term of 5 years supervised probation. Defendant violated the terms of his probation by possessing a handgun, which resulted in a three-year prison sentence. Almost immediately upon his release, he returned to a life of crime, committing the current drug and firearms related offenses. Defendant was “the very portrait of a career offender.” U.S. v. Stockton, 349 F.3d 755 (4th Cir. 2003).

 

4th Circuit says defendant with two prior felony drug convictions did not deserve downward departure. (514) Defendant had initially been convicted of trafficking in cocaine, but this conviction was overturned by the South Carolina Supreme Court. Defendant re­mained in jail pending retrial on a new indictment for a lesser drug charge. In the meantime, a federal parole warrant was issued against defendant because of the vacated state conviction. Defendant pled guilty to the lesser charge in exchange for a sentence of time served. In the present case, counsel suggested the defendant deserved a downward departure from career offender status because he pled guilty in South Carolina despite a “defensible” case simply to avoid reincarceration by the federal govern­ment. The Fourth Circuit found that a departure was not warranted, given defendant’s two prior felony drug convictions and his numerous parole violations. Even if his South Carolina charge was defensible, a grand jury did reindict him for a drug felony after the Supreme Court reversed his earlier conviction, and he did plead guilty while represented by counsel. With two prior serious felony drug convictions, as well as his parole violations, defendant could not sustain his claim that his record overstated the seriousness of his past conduct. U.S. v. Pearce, 191 F.3d 488 (4th Cir. 1999).

 

4th Circuit remands for more complete explanation of criminal history departure. (514) Defendant had an offense level of 22 and a criminal history category of V for a sentencing range of 77-96 months. The district court departed to an offense level of 38 and a criminal history category of V, for a guideline range of 360 months to life. The court did not indicate what guideline section it used to make its departure. It appeared, however, based on the court’s statement that defendant’s criminal history category understated defendant’s criminal activity, that the court used § 4A1.3. The Fourth Circuit remanded for a more complete explanation of how the court arrived at its sentence. The court should initially have considered the guideline for offense level 22 and criminal history cate­gory VI, for a guideline range of 84 to 105 months, and determine whether it adequately represented the serious­ness of defendant’s criminal record. If, having undertaken that analysis, the court was dissatisfied with the result, it could then have considered other options. U.S. v. Law­rence, 161 F.3d 250 (4th Cir. 1998).

 

4th Circuit says record did not support treating defendant as de facto career offender. (514) Defendant had 45 criminal history points. The minimum needed for criminal history category VI is 13. The district court departed from a range of 130-162 months, to a sentence of 235 months, stating that the punishment was “commensurate with career offender provisions.” The Fourth Circuit remanded, since the record did not support sentencing defendant as a de facto career offender, and the court did not make level-by-level findings to otherwise support the degree of departure. Defendant’s past criminal conduct did not demonstrate that he would have been sentenced as a career offender but for the exclusion of a prior conviction. Defendant’s 1984 breaking and entering convictions could not qualify as predicate convictions under § 4B1.2 because the record did not show whether these offenses involved dwellings or commercial structures. The post-1984 convictions all involved burglaries of commercial dwellings. Therefore, the district court could not sentence defendant as a de facto career offender. Judge Niemeyer dissented, believing the court’s methodology fully complied with the guidelines. U.S. v. Harrison, 58 F.3d 115 (4th Cir. 1995).

 

4th Circuit says lack of criminal history and lack of violence did not justify downward departure. (514) The district judge said it imposed a life sentence only because it was compelled by the guidelines. Defendant argued that the district court had the authority to make a downward departure. The 4th Circuit held that the factors listed by the district court (defendant’s criminal history category of I and the lack of violence in the offense) did not justify a downward departure. The Sentencing Commission adequately considered and rejected departures below category I based on lack of criminal history. Most of the guidelines’ base offense levels are predicated on an absence of violence, with the guidelines specifically allowing upward departures if the offense results in physical injury or a weapon is used. U.S. v. Harris, 39 F.3d 1262 (4th Cir. 1994).

 

4th Circuit rejects downward departure for offense committed while on probation for related offense. (514) Defendant was convicted in state court of assaulting his wife’s lover. The day after he was placed on probation for this offense, he mailed several bullets to the lover’s parents, and was convicted of mailing a threatening communication. Defendant received criminal history points for the assault conviction, and points under § 4A1.1(d) because he committed the instant offense while on probation. The district court departed downward under § 4A1.3 because the mailed threat and the assault were “one continuous event.” The 4th Circuit reversed. Criminal history points under § 4A1.1 may not be offset by a downward departure under § 4A1.3. The Sentencing Commission clearly recognized the likelihood that a defendant would incur criminal history points under both subsections 4A1.1(d) and (e), as well as under one or more of subsections (a)-(c). The fact that this has occurred does not mean that the defendant’s criminal history has been overstated. U.S. v. Weddle, 30 F.3d 532 (4th Cir. 1994), superseded on other grounds by guideline as stated in U.S. v. Riggs, 370 F.3d 382 (4th Cir. 2004).

 

4th Circuit rejects downward departure for small drug quantity in offense that triggered career offender status. (514) Defendant was classified as a career offender based on two prior state drug convictions. The district court departed downward because it found that one of the convictions involved a small quantity of drugs. The 4th Circuit reversed, ruling that the Sentencing Commission adequately considered drug quantity in formulating the career offender guideline. In drug cases, the career offender guideline accounts for drug quantities through two means. First, the career offender offense level is determined from the statutory maximum penalty underlying the instant offense, which is based on the quantity of drugs. Second, in selecting a sentence within the guideline range, a court may consider both the quantity of drugs involved in the instant offense and in the prior felonies. In light of the guidelines’ underlying goal of consistently sentencing felons guilty of multiple drug offenses, these two means demonstrated that the Commission adequately considered drug quantities. U.S. v. Brown, 23 F.3d 839 (4th Cir. 1994), abrogation on other grounds recognized by U.S. v. Hairston, 96 F.3d 102 (4th Cir. 1996).

 

4th Circuit holds extent of downward depar­ture based on criminal history was an abuse of discretion. (514) The dis­trict court granted defendant a downward depar­ture from a guidelines range of 292-365 months to a sen­tence of 180 months because the court felt that defen­dant’s criminal his­tory category was over­stated.  Defen­dant had a number of driving without a license convic­tions which the district court felt inflated the criminal history category.  The 4th Circuit held that although a departure was justified, the extent of the departure was an abuse of discretion.  If the driving offenses were ex­cluded, the 4th Circuit ruled that the departure should not have fallen below that provided by the next lower criminal history category which would have produced a sen­tencing guideline range of 262-327 months.  U.S. v. Summers, 893 F.2d 63 (4th Cir. 1990).

 

5th Circuit reverses departure where court increased defendant’s offense level rather than criminal history score. (514) Defendant’s preliminary guideline range was 10-16 months based on a total offense level of 10 and a criminal history category of III. Based on two prior convictions that the probation officer considered more serious than the Guidelines accounted for, the district court departed upward, increasing defendant’s offense level from 10 to 18. This increased his guideline range to 30-37 months. The Fifth Circuit reversed. The Guidelines make plain that a departure based on the inadequacy of the defendant’s criminal history is made by adjusting the criminal history category. Here, the court increased defendant’s offense level, not his criminal history category. This procedural error created a significant difference in the sentencing range. Because of the procedural error in calcu­lating the departure, remand was necessary. Unlike the Seventh and Ninth Circuits, which have found that guideline departure provisions have been “rendered obsolete,” in the Fifth Circuit judges must correctly apply the Guidelines, includ­ing any departure, before applying a variance. U.S. v. Gutierrez-Hernandez, 581 F.3d 251 (5th Cir. 2009).

 

5th Circuit says prior arrests were not sufficiently reliable to support upward departure but still affirms sentence. (514) Defendant pled guilty to possession of child pornography, in violation of 18 U.S.C. §2252(a)(5)(B). The district court departed upward from the guideline range of 46-57 months to the statutory maximum of 120 months citing several factors, including prior arrests that did not result in convictions. The Fifth Circuit held that defendant’s arrest record did not constitute reliable information upon which the court could base an upward criminal history departure. The district court did not find that defendant actually committed the rape of a child in 1993 or committed the sexual batteries which he had been accused of at the time of sentencing. Had there been such a finding supported by evidence, the court could have considered those facts in departing. However, it was not reasonably probable that the defendant would have received a lesser sentence had the district court not considered the prior arrests. The court also found that this was a “very serious offense” and that it needed to protect the public from future offenses by defendant. Defendant was in possession of 4,139 images of child pornography. The guidelines provided for a five-level increase for possessing 600 or more images. The district court could reasonably have concluded that the possession of 4,139 images of child pornography was an aggravating circumstance not adequately considered by the Sentencing Com­mis­sion, and required the maximum sentence possible. U.S. v. Jones, 444 F.3d 430 (5th Cir. 2006).

 

5th Circuit remands where basis for mental health related departure was unclear. (514) The district court departed downward from criminal history category VI to IV based on a overstatement of criminal history, as provided by U.S.S.G. § 4A1.3; however, the court also discussed defendant’s mental health and its concern that incarceration would lead to a break in her mental health treatment. The Fifth Circuit found it unclear as the court’s exact reasons for departure, and remanded for a clarifica­tion. The district court appeared to have concluded that defendant’s history of mental illness, in com­bination with her over-medication during the period in which some of her prior crimes were committed and the non-violent, “petty” nature of those crimes, made a criminal history category of VI inappropriately high. It would not be a per se abuse of discretion for the district court to find that a history of over-medication by psychotropic drugs, combined with prior offenses that are nonviolent and petty, justified a downward departure under U.S.S.G. § 4A1.3. It also would not necessarily be an abuse of discretion to depart under § 5K2.0 to prevent a break in mental health treatment. However, U.S. v. Thames, 214 F.3d 608 (5th Cir. 2000) forecloses consideration of mental health as the basis for a downward departure when that factor implicates diminished capacity regarding the crimes at issue, except under § 5K2.13. The court’s written statement of reasons was unclear as to which of these possibilities was applicable. U.S. v. Bell, 351 F.3d 672 (5th Cir. 2003), superseded, U.S. v. Bell, 371 F.3d 239 (5th Cir. 2004).

 

5th Circuit rejects upward criminal history departure based on sentences considered as relevant conduct. (514) The district court found that defendant’s 1999 and 2000 state sentences involved conduct relevant to the instant federal offense, and thus used the facts underlying the state convictions in determining the amount of loss, the number of victims, and defendant’s role in the offense. Pursuant to § 4A1.2, the district court did not include the state sentences in defendant’s criminal history score because, as relevant conduct, they were not “prior sentences.” The district court, however, used the relevant conduct state sentences as the basis for a criminal history departure under § 4A1.3. Section 4A1.3 permits an upward departure if “reliable information” indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct. The reliable information may include, but is not limited to “prior sentence(s) not used in computing the criminal history. § 4A1.3(a). In U.S. v. Hunerlach, 258 F.3d 1282 (11th Cir. 2001), the Eleventh Circuit held that the term “prior sentence” in § 4A1.3 does not include relevant conduct. The Fifth Circuit agreed, holding that when a district court determines that a sentence is relevant conduct to the current offense, and considers it as a factor in adjusting the offense, the sentence cannot then be the basis for a criminal history departure under § 4A1.3. Relevant conduct is part of the instant offense, and therefore is not a “prior sentence” under § 4A1.3(a). U.S. v. Cade, 279 F.3d 265 (5th Cir. 2002).

 

5th Circuit rules that factual finding supporting upward departure was clearly erroneous. (514) Defendant pled guilty to possessing a weapon. The district court departed upward be­cause of three separate instances of prior similar conduct by defendant. In one 1991 instance, defendant was only charged with attempting to evade arrest. A gun was found in the locked glovebox of the car he was driving, and the district court found that defendant had con­structively possessed the gun. The 5th Circuit reversed the departure, concluding that the sentencing court’s factual finding that defendant constructively possessed the handgun was clearly erroneous. The government failed to adduce additional evidence linking defendant to the gun, such as fingerprints or continual long-term use of the vehicle. The facts established that defendant’s passenger, and not defendant, exercised complete dominion and control over the gun. The key to the glove box was found in the police cruiser where the passenger was detained, the passenger alone was charged with possession of the gun, and the passenger owned the car. U.S. v. Wright, 24 F.3d 732 (5th Cir. 1994).

 

5th Circuit says first-time offender, community service, employment record and potential for victimization are not departure grounds. (514) The guidelines specifically reject first-time offender status as a ground for a downward departure.  First-time offenders are assigned criminal history category I, which adequately reflects the level of recidivism.  Sections 5H1.5 and 5H1.6 also specifically reject community service and employment record as grounds for departure.  Moreover, there is no authority in the 5th Circuit for departing based on the potential for victimization.  U.S. v. Ardoin, 19 F.3d 177 (5th Cir. 1994).

 

5th Circuit says that refusal to depart is not an abuse of discretion. (514) Defendant argued that the district court erred in not departing down­ward since all of his prior crimes occurred in 1977, and if he had committed the instant offense just a few months later, he would have been in criminal history category I or II rather than V.  The 5th Circuit found that the district court did not abuse its discretion in refusing to grant the downward departure.  All of de­fendant’s prior offenses were felonies, and included theft of a car, the same type of offense as the instant offense.  U.S. v. Cain, 10 F.3d 261 (5th Cir. 1993).

 

5th Circuit upholds reasons for departure but rejects extrapolation to higher criminal history level. (514) Defendant had 26 criminal history points, twice the minimum necessary to fall within criminal history category VI.  The district court departed upward by extrapolating to a hypothetical criminal history category X, and sentencing within this extrapolated guideline range.  The 5th Circuit upheld the district court’s reasons for the departure, but rejected its methodology.  A November 1992 amendment to section 4A1.3 clarified that when a district court intends to depart above criminal history category VI, it should stay within the guidelines by considering sentencing ranges for higher base offense levels.  U.S. v. Pennington, 9 F.3d 1116 (5th Cir. 1993).

 

5th Circuit rejects remote convictions as possible ground for departure. (514) De­fendant argued that the district court should have departed downward because it used re­mote convictions to increase his criminal his­tory score.  The 5th Circuit found that be­cause the guidelines adequately take into ac­count the remoteness of prior convictions considered for determining a defendant’s criminal history score, a downward departure on this ground would be inappropriate.  Moreover, the appellate court would not re­view a refusal to depart absent a violation of law.  U.S. v. Sparks, 2 F.3d 574 (5th Cir. 1993).

 

5th Circuit vacates departure based on youth, cul­pability of co-defendant, and criminal history. (514) The district court departed from the guidelines sentence, but the 5th Circuit found none of the proffered reasons acceptable.  The Commission has “normally eliminated” age as a basis for depar­ture.  Moreover, the greater culpability of a co-defen­dant may be the basis for an adjustment under sec­tion 3B1.2 and there­fore cannot support the district court’s depar­ture.  Finally, the court disagreed with the trial judge’s conclusion that defendant’s criminal history score overrepresented her criminal past, stressing that defendant’s prior crimes were serious and continued up to the date of the instant offense and that defendant had been arrested five times that were not re­flected in her score.  The case was re­manded for the court to consider whether other grounds for departure existed.  U.S. v. Madi­son, 990 F.2d 178 (5th Cir. 1993).

 

5th Circuit upholds career offender status even though prior crimes were committed in a short time span. (514) Defendant argued that the trial court sentenced her under the erro­neous impression that it was without au­thority to depart downward from the guidelines.  The 5th Circuit found nothing in the record to sup­port this assertion.  Defendant also argued that the district court should have departed down­ward on the basis that her criminal history was overstated.  Although defendant met the tech­nical re­quirements for career offender sta­tus, she argued she should not be considered an ordinary career offender because all of her crimes were commit­ted in a short period of time.  De­fendant had five con­trolled substance violations in 1986 and 1987.  The 5th Circuit rejected this argument, finding no support for defendant’s position that crimes committed within a short time frame should be an excep­tion to the ca­reer offender guidelines.  U.S. v. Harrison, 918 F.2d 30 (5th Cir. 1990).

 

5th Circuit reverses upward criminal history departure in alien case. (514) Defendant was convicted of various offenses related to smug­gling aliens into the United States.  Defendant had sev­eral previous convictions for similar of­fenses, and the district departed upward, find­ing that the guidelines did not ade­quately take into con­sideration defen­dant’s “criminal in­volvement, particularly in matters involving the same type of offense [and] the number of aliens involved in this case.”  The 5th Circuit reversed, finding no reason to believe that the guidelines did not adequately con­sider de­fendant’s criminal history.  All of defendant’s prior convic­tions of any significance were con­sidered in calculating his criminal history score.  The fact that defendant had previ­ously been convicted of similar offenses was also consid­ered.  Although the dis­trict court’s com­ments also sug­gested that the departure was based on the large number of aliens in­volved, the 5th Circuit found that this was a “makeweight, or minor collateral reinforcement” for its de­parture, and the pri­mary reason for the de­parture was de­fendant’s substan­tial criminal history.  U.S. v. Martinez-Perez, 916 F.2d 1020 (5th Cir. 1990).

 

5th Circuit reverses criminal history depar­ture for fail­ure to state adequate reasons. (514) In departing up­ward from 30 months to 10 years, the district court failed to state why defendant’s criminal history category was inad­equate, nor did it state why the next higher cat­egory would not suffice.  The 5th Circuit re­versed and re­manded for resentencing, stating that the district court must identify “those spe­cific aspects of the defen­dant’s criminal history not adequately considered by the guide­lines.  The court noted “a tension, if not an incon­sistency” between its prior holdings in cases in­volving crimi­nal history departures, and Judge Garwood ex­pressly urged that this case be taken en banc to resolve the conflict.  U.S. v. Jones, 905 F.2d 867 (5th Cir. 1990).

 

5th Circuit holds that fact that defendant could have received a greater punishment had he been sen­tenced sepa­rately in each jurisdic­tion, did not justify upward depar­ture. (514) The 5th Circuit held that the fact that de­fendant could have received a greater pun­ishment had he been sentenced separately in each juris­diction where he committed a bank robbery, could not provide a basis for de­parture.  “Under § 3D1.4 the Commis­sion has made its determination as to how to calculate the offense level when multiple of­fenses are being sentenced in a single proceed­ing.”  “The policy ra­tionale of § 3D1.4 is no less appli­cable because some of the crimes were committed in differ­ent places; its aggre­gation for­mula should govern the result here.”  U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990).

 

5th Circuit holds that prior arrest record alone is too unre­liable to justify departure. (514) Defendant had sev­eral prior arrests that did not result in convictions.  The dis­trict court departed upward based on these ar­rests, stat­ing that defendant’s criminal history Category of I did not ade­quately reflect his criminal his­tory.  The 5th Circuit reversed, ruling that ar­rests that do not result in convictions are not the “type of ‘reliable information’ that justifies a departure from the Sentencing Guideline range.”  The court also noted that the depar­ture was from Category I to Category III and directed that on remand, if the court departed, it should specifically state why a departure to Category II was inade­quate.  U.S. v. Cantu-Dominguez, 898 F.2d 968 (5th Cir. 1990).

 

5th Circuit reverses where court failed to state reasons for applying criminal history category VI. (514)  The pre­sen­tence report concluded that defendant was a ca­reer of­fend­er as de­fined by guideline § 4B1.1.  However, at the urging of both the defendant and the gov­ernment, the dis­trict court ruled that it would not apply the career offend­er enhancement.  Nevertheless, the district court then placed defendant in criminal his­tory VI, even though the presen­tence report set his crimi­nal history as II.  The 5th Circuit vacated the sen­tence, noting that the court gave no indication that it in­tended to depart upward from the criminal history cate­gory ap­plicable under the guide­lines.  Nor did it provide the requisite explana­tion for a departure.  U.S. v. Eber­towski, 896 F.2d 906 (5th Cir. 1990).

 

5th Circuit vacates departure which was based on “severity of offense and propensity for re­cidivism.” (514) The district court stated that the 60-month sen­tence was “within the ap­plicable guidelines.”  In fact, the presen­tence report re­flected a guideline range of 30 to 37 months, so the sentence was a departure up­ward.  The district court’s comments indi­cated that the depar­ture was based on “the severity of the offense and [defendant’s] propensity for re­cidivism as re­flected in his past criminal con­duct.”  The 5th Circuit vacated the sen­tence, noting that the district court failed to “explain why the guidelines fail to address these mat­ters.”  The case was remanded for resentenc­ing.  U.S. v. Shaw, 891 F.2d 528 (5th Cir. 1989).

 

5th Circuit holds failure to consider lower criminal his­tory levels in de­parture requires reversal. (514) Defen­dant had a crimi­nal his­tory level of IV and an adjusted offense level of 8, resulting in an appropriate range of 10-16 months.  How­ever, the sentencing court im­posed the three year maxi­mum sentence due to the defendant’s past “prior history.”  The 5th Circuit vacated the sen­tence, holding that the district court erred in failing to explicitly con­sider whether criminal history levels V or VI would have more appropriately represented his prior history.  U.S. v. Rios, 876 F.2d 24 (5th Cir. 1989).

 

5th Circuit limits departures for under­represented criminal history. (514) Defendant received a criminal his­tory I category because her prior offenses for alien smuggling were over 10 years old under § 4A1.2(e)(2).  The trial court departed upward two years from the guidelines, because her criminal his­tory was thus under­represented.  The 5th Cir­cuit held that such a large depar­ture was error.  The departure effectively set the defendant’s criminal history category at V.  The sen­tencing court should have considered whether the use of categories II-IV would adequately represent the defen­dant’s criminal history before it de­parted from the guide­lines.  U.S. v. Lopez, 871 F.2d 513 (5th Cir. 1989).

 

6th Circuit remands where court failed to explain jump from category II to IV. (514) Although defendant fell within criminal history category II, the district court felt that category IV more accurately reflected defendant’s “true background.” The 6th Circuit remanded, because the district court did not consider the intervening criminal history category. U.S. v. Bond, 22 F.3d 662 (6th Cir. 1994).

 

6th Circuit rejects departure using hypothetical criminal history category VIII. (514) The district court found that criminal history category IV was unsatisfactory because of defendant’s numerous prior convictions, and instead sentenced defendant within a hypothetical criminal history category VIII.  The 6th Circuit held that the construction of a hypothetical criminal history category above VI was prohibited by the policy statement to § 4A1.3 (as amended in 1992).  Instead, the guidelines require a sentencing court to look to the other axis and consider the available ranges from higher offense levels.  On remand, the district court could make an upward departure, in its discretion, but could not create a hypothetical criminal history category greater than VI.  If the court decides that an additional adjustment is necessary through the selection of a higher offense level, it must demonstrate why it finds the sentence imposed by each intervening level to be too lenient.  U.S. v. Gray, 16 F.3d 681 (6th Cir. 1994).

 

6th Circuit rejects departure from category III to VI based on two out-of-time convictions. (514) The district court found that criminal history category III did not adequately reflect the seriousness of defendant’s criminal history, and that if two “out-of-time” convictions had been included in the calculations, he would have been classified as a career offender.  Accordingly, the court departed up to category VI.  The 6th Circuit reversed, finding that although application note 8 to section 4A1.2 authorizes the use of “out-of-time” convictions as a basis for departure, they could not be used to establish career offender status and reach category VI.  The district court could not arbitrarily change the requirements for career offender status.  The extent of the departure could also not be justified based on the inadequacy of categories IV and V, since the district court reached category VI without explaining why the intermediate categories were inadequate.  U.S. v. Schultz, 14 F.3d 1093 (6th Cir. 1994)

 

6th Circuit rejects extrapolation to hypo­thetical criminal history category above VI. (514) The district court departed above criminal history category VI by extrapolating to a hypothetical criminal history category IX, and sentencing defendant within that range.  The 6th Circuit rejected this previously-ap­proved methodology, because the November 1992 guidelines disapprove of it.  Section 4A1.3 now provides that instead of hypothe­sizing a criminal history category more than VI, a court must look to the other axis of the Sentencing Table and consider the available ranges from higher offense levels.  Defen­dant’s offense level would have to be in­creased by three points in order to receive the same sentence.  On remand, the district court should apply the methodology suggested by the guidelines, and if it elects to increase his offense level by three, it must demonstrate why it found the sentence imposed by each intervening level to be too lenient.  U.S. v. Carr, 5 F.3d 986 (6th Cir. 1993).

 

6th Circuit reverses upward departure for old con­victions and drunk driving of­fenses. (514) The district court departed upward because (a) four of defendant’s prior felonies did not appear in his criminal history score because they were too old, (b) his criminal history category was already at the high­est level, (c) he continued to drive after nu­merous drunk driving convictions and af­ter license revoca­tion, (d) his purpose in us­ing the false social security number was to obtain a new driver’s license, and (e) he was arrested for drunk driving while using the false license.  The 6th Circuit reversed.  The ex­tent of defendant’s criminal history was not so severe that it justified an upward depar­ture.  Defendant had 13 criminal history points, the minimum number neces­sary for category VI.  Moreover, section 4A1.2(e)(3) specifically excluded convictions more than 15 years old from a defendant’s criminal his­tory score.  The three remaining grounds for the depar­ture, all con­cerning defendant’s un­derlying purpose in commit­ting the offense, were adequately addressed in the guidelines.  U.S. v. Eve, 984 F.2d 701 (6th Cir. 1993).

 

6th Circuit finds “persistent involvement in drug-re­lated criminal activity” inade­quate for up­ward de­parture. (514) Defen­dant fell within criminal his­tory category VI and had a guideline range of 37 to 46 months.  The district court departed upward and sen­tenced defendant to 120 months, stating that his crimi­nal history was not ade­quately reflected by the guide­lines, and that he had “persistent involvement with drug-re­lated criminal activity, both in and out of jail.”  The 6th Circuit found this was not an ade­quate state­ment of grounds for the upward de­parture as required by 18 U.S.C. section 3553(c)(2).  Moreover, normally when making a criminal history departure a district court must first consider the next highest criminal his­tory category.  Here, where defendant was already in the highest criminal history cate­gory, “the need for a spe­cific and reasoned explanation [was] particularly com­pelling.”  U.S. v. Downs, 955 F.2d 397 (6th Cir. 1992).

 

6th Circuit reverses downward departure based on dis­satisfaction with harshness of career criminal provi­sions. (514) As a ca­reer offender, defendant had a guide­line range of 210 to 262 months.  The district court de­parted downward to 63 months be­cause his two predicate offenses were more than 10 years old, and if sentenced as a ca­reer of­fender, he would receive a much harsher sentence than his more culpable co-conspirators.  The 6th Circuit re­versed, rul­ing that a court may not depart downward be­cause it be­lieves a career offender sentence would be exces­sive.  With re­spect to the age of the prior convictions, the Sentencing Commission has specifically determined that of­fenses com­mitted within 15 years of the in­stant offense are to be consid­ered.  Finally, the objective of the guide­lines is not to elimi­nate disparity be­tween defendants in the same case who have different criminal records, but to eliminate unwarranted dis­parities nationwide.  To re­duce a defen­dant’s sentence because of a perceived dis­parity with a co-defendant’s sentence creates a new and un­warranted dis­parity between the first defendant and the sen­tences of other defen­dants nationwide who are similarly situ­ated.  U.S. v. LaSalle, 948 F.2d 215 (6th Cir. 1991).

 

6th Circuit rejects criminal history departure for fail­ure to explain why intervening cat­egories were inade­quate. (514) The district court departed upward from criminal history category II to cate­gory V for various vi­olent factors in defen­dant’s background.  The 6th Circuit vacated the sentence and remanded for resentencing.  In the absence of reasons why the trial court rejected the next two higher criminal history levels, the case was not suf­ficiently unusual to warrant a de­parture beyond the next cat­egory or the next two categories.  Many of the factors identi­fied by the district court were ade­quately considered by the Sen­tencing Commission in com­puting criminal history points.  Defendant’s prior misde­meanor conviction for disor­derly conduct was specifi­cally ex­cluded from consideration by the Sen­tencing Commis­sion.  U.S. v. Head, 927 F.2d 1361 (6th Cir. 1991).

 

6th Circuit reverses downward departure for first-time of­fender. (514) The district court de­parted downward based on the fact that this was the first time defendant had been in any trouble, and that the circumstances were “somewhat unusual.”  The 6th Circuit reversed.  The absence of a criminal record is taken into account by the sentencing guidelines, and there can be no down­ward departure from criminal history category I on the basis of a defendant’s lim­ited criminal history.  The dis­trict court’s reference to “unusual circumstances” failed to state a specific reason for the departure which the ap­pellate court could review.  U.S. v. Todd, 920 F.2d 399 (6th Cir. 1990).

 

6th Circuit reverses upward departure that treated defen­dant as a “career offender.”  (514) The district court departed from the guidelines in order to treat the defendant as a “career offender” even though one of the of­fenses was beyond the ten-year limitation ap­plicable to the career of­fender section.  See Commentary to § 4B1.2.  The court said that it believed that the prior con­viction would have been countable but for the fact that the defendant re­ceived a “real break” from the sentenc­ing judge in that case.  The 6th Circuit reversed, holding that the district court “cannot arbi­trarily change the re­quirements for career of­fender status established by the Sentencing Commission simply because it feels that [the defendant] got a break in 1977.”  U.S. v. Robi­son, 904 F.2d 365 (6th Cir. 1990).

 

6th Circuit holds departures must be ex­plained in lan­guage related to guide­lines. (514) In sentencing the de­fendant for armed rob­bery the court departed upward from the 77-96 month range to impose 15 years.  The court cited defendant’s extensive criminal his­tory dating back to age 14 as reason for depar­ture.  On appeal, the 6th Circuit ruled that since the court did not articulate its reasons for departure in language re­lating to the guide­lines nor connect defendant’s criminal record to the guidelines, the departure was in error.  The court was in­structed on remand to consider the next higher criminal history category as a ref­erence before departing from the range, which would serve to “order” and stan­dardize the de­parture process without removing a judge’s dis­cretion to impose an alternative sentence.  The court here failed to look at the next higher range and failed to demonstrate that the next higher category was too lenient.  U.S. v. Kennedy, 893 F.2d 825 (6th Cir. 1990) .

 

7th Circuit reverses for failure to explain basis for higher sentence. (514) The PSR calculated defen­dant’s criminal history as IV, but the district court stated that defendant’s criminal history was understated, and that it should be at least a category V. It sentenced him to 96 months, which would be at the top of the guideline range if defendant had a criminal history category of V. The Seventh Circuit ruled that the district court failed to adequately explain its sentence. The court imposed a sentence above the guideline range calculated in the PSR without explaining how it arrived at the higher range and in spite of its statement that it was sentencing based on the PSR’s calculations. Although the record showed that the sentencing judge believed defendant’s criminal his­tory category was underrepresented, it was unclear as to how that finding was used to calculate defendant’s sentence. U.S. v. Johnson, 612 F.3d 889 (7th Cir. 2010).

 

7th Circuit upholds court’s refusal to grant criminal history departure. (514) Defendant argued that being placed in criminal history category IV substantially overrepresented the seriousness of his criminal history, and that he should have received a downward departure under § 4A1.3(b)(1). The Seventh Circuit found no abuse of discretion. The judge discussed defen­dant’s argument at length and decided against assigning a lower criminal history category. Defendant had 34 adult convictions for an array of offenses, including at least one per year from 2001 to 2006. Fifteen of these convictions were used in calculating defendant’s criminal history points. U.S. v. Turner, 569 F.3d 637 (7th Cir. 2009).

 

7th Circuit finds court erred in departing but error was harmless. (514) Defendant was con­victed of dealing in firearms without a license. The district court initially imposed a sentence of 56 months, but the Seventh Circuit remanded for resentencing in light of Booker. On remand, the district court determined the applicable advisory guideline range to be 63-78 months. The court then granted defendant’s motion for a downward departure and reduced his criminal history category from IV to III, resulting in an advisory guideline range of 51-63 months. The court imposed a 51-month sentence. The Seventh Circuit held that the court erred in granting a downward departure, but the error was harmless. Under Booker, the proper procedure is for the sentencing judge first to compute the guideline range, and then to apply the sentencing factors in 18 U.S.C. § 3553(a) in order to decide whether the sentence should be inside or outside the range. See U.S. v. Spano, 476 F.3d 476 (7th Cir. 2007). After Booker, departures have become “obsolete.” However, the error was harmless. “It is hard to conceive of below-range sentences that would be unreasonably high.” Defendant’s sentence was an entire year below the low end of the appropriate guideline range. U.S. v. Simmons, 485 F.3d 951 (7th Cir. 2007).

 

7th Circuit says court erred in departing upward without determining reliability of uncorroborated evidence. (514) The district court originally departed upward from Criminal History Category II, but in U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000), the Seventh Circuit vacated the sentence because the district court neglected to explain why the departure was warranted. On remand, the district court again departed upward without ruling on the reliability of uncorroborated molestation allegations and failing to explain why defendant’s criminal history was more comparable to Category VI. Once again, the Seventh Circuit vacated and remanded for resentencing. The government offered evidence in the PSR that defendant had sex with a 14-year old boy in Georgia, possessed child pornography in Mexico, sent a Valentine’s card to a child he met at a gym, took a shower with an unrelated 12-year old boy, and molested numerous children. The court did not make findings regarding the reliability of this evidence. Because these alleged incidents of molestation were uncorroborated, the district court was required to make specific findings regarding the reliability of the evidence before it used the evidence to support an upward departure. Furthermore, the court found that defendant was more comparable to a Category VI criminal without discussing whether defendant had committed three crimes of violence, a required element of a Category VI criminal. U.S. v. Angle, 315 F.3d 810 (7th Cir. 2003).

 

7th Circuit holds that court used improper method for determining degree of criminal history departure. (514) Defendant had 20 criminal history points, putting him in criminal history category VI, the highest category. The district court found that category VI did not adequately reflect the seriousness of defendant’s past criminal conduct. Accordingly, it departed upward from the high point of the relevant guideline range (96 months) and sentenced defendant to the maximum term under the mail fraud statute (60 months) for each of the three counts, and ordered the sentences to run consecutively, a total of 180 months. Although the facts supported an upward departure, the Seventh Circuit held that the district court used an improper method for determining the degree of the departure. Section 4A1.3 provides that where an upward departure from a category VI is warranted, “the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case.” Instead of attempting to link the departure to the structure of the guidelines, the judge simply imposed the longest sentence statutorily possible in order to achieve the maximum incapacitation possible. Although this was not unreasonable, given defendant’s criminal history, a judge must follow § 4A1.3 in fashioning the degree of the departure. U.S. v. Cross, 289 F.3d 476 (7th Cir. 2002).

 

7th Circuit says four category criminal history departure not sufficiently tied to guidelines. (514) Defendant was convicted of possessing an unregistered silencer. With a criminal history category of I and an offense level of 20, his sentencing range was 33 to 41 months. The district court departed upward to a 70-month sentence, however, after concluding that his criminal history category understated his past dangerousness. There was evidence that defendant had previously mailed to his ex-wife’s lawyer a box containing “pull-trigger device,” a device that fired a bullet at whoever opened the box. The judge determined that a more appropriate criminal history category would be V. The Seventh Circuit ruled that the departure was insufficiently linked to the structure of the guidelines. The district court found that defendant sent the pull-trigger device lacking a specific intent to kill, but knowing that it created a risk of death or serious injury. No injury ensued. Thus, the closest offenses would have been attempted second-degree murder under state law, or mailing an explosive device with attempt to injure. Both offenses would likely had led to only three criminal history points, putting defendant in Category II rather than V. Basing a sentence on related criminal conduct, such as misuse of a firearm by a felon, usually depends on cross-references within the guidelines, not on manipulating the criminal history category. U.S. v. Rogers, 270 F.3d 1076 (7th Cir. 2001).

 

7th Circuit remands for explanation of degree of criminal history departure. (514) The district court departed upward from a guideline range of 151-188 months to a sentence of 325 months because defendant’s 1977 sodomy conviction was too old to be counted in his criminal history. Defendant argued that the court did not follow proper procedure in granting the government’s request for a departure and that the record contained no evidence that the court used the sentencing guidelines to fashion the departure. The Seventh Circuit agreed, and remanded for the court to explain the extent of its departure in accordance with the procedures outlined in U.S. v. Tai, 994 F.2d 1204 (7th Cir. 1993) (court must explain why departure factors make defendant’s criminal history more comparable to criminal histories in a higher category by assigning some value, based on analogous guideline factors, to each ground for departure). U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000) (en banc).

 

7th Circuit denies 4A1.3 departure where defendant had three priors and resisted arrest. (514) Police discovered a gun in defendant’s car when he was stopped for speeding. He was convicted of being a felon in possession of a firearm. At sentencing, the judge noted that the guideline sentence was harsh because defen­dant had not been in trouble for two years, and was only arrested for speeding when the gun was discovered. Defendant argued that the judge erroneously believed he lacked grounds to grant a criminal history departure. The Seventh Circuit held that defendant, who had three prior felony convictions, resisted arrest and fled from law enforcement, was not a candidate for a § 4A1.3 departure. The example in the guidelines notes that departure is justified where a defendant has steered clear of crime for a substantial period of time and his prior offenses were relatively minor in terms of violence or danger to the community. U.S. v. Bradford, 78 F.3d 1216 (7th Cir. 1996).

 

7th Circuit suggests that prior rapes were not similar to instant drug offense. (514) Defendant pled guilty to drug charges. The district court departed upward under § 4A1.3(e) based on two prior rapes and a false imprisonment that had not resulted in conviction. The court specifically found that the prior offenses were similar to the instant drug offense. The Seventh Circuit remanded for more findings on the similarity issue. Prior similar crimes may suggest that the defendant has become skilled in the commission of a particular type of crime and as a result is able to get away with most of them. If this is so, then offenses as unlike each other in motive and method as drug dealing and rape are not similar under the guidelines. The false imprisonment offense presented a more difficult question. Defendant actually abducted two men, but the victims did not press charges. The record suggested that the victims were intimidated by the sight of defendant and his associates at the police station. If the associates were partners in defendant’s drug business, then the drug crimes may have facilitated the false imprisonment offense. On remand, the judge may choose to base the departure on prior dissimilar conduct. U.S. v. Anderson, 72 F.3d 563 (7th Cir. 1995).

 

7th Circuit remands 2-level criminal history departure where two of three reasons were invalid. (514) The district court departed from criminal history category IV to VI, citing (1) juvenile convictions that were excluded from defendant’s score, (2) the fact that defendant committed his offenses shortly after being released from prison, and (3) defendant’s life of continual crime of increasing violence. The Seventh Circuit held that the first two reasons were invalid but the third reason was valid. Juvenile convictions that ended more than five years before the instant offense were consciously excluded by Guidelines. A court may not override this by an upward departure. With regard to the fact that the offenses were committed shortly after being released from prison, defendant received increases under § 4A1.1(d) and (e) because he committed his first offense while on parole and within two years of leaving prison. He also was denied an acceptance of responsibility reduction because he committed the second offense while on pretrial release for the first. However, the fact that defendant led a life of continual crime, and met most of the criteria for an armed career criminal, was a valid ground for departure. Defendant’s juvenile convictions could be considered as part of the pattern of recidivism. The case was remanded to permit the district court to reconsider, although it was not required to lower the sentence. U.S. v. Croom, 50 F.3d 433 (7th Cir. 1995).

 

7th Circuit rejects departure based on pending state charges, for lack of investi­gation. (514) The district court found defen­dant’s criminal history was underrepresented in light of his prior convictions and several pending state charges against him.  The 7th Circuit rejected the departure, since there was no reliable evidence that defendant committed the charged conduct.  There was no evidence in the record that either the pre­sentence report author or the prosecutor made an independent investigation of the pending state charges, or that the prosecutor established the criminal conduct underlying those charges by a preponderance of the evi­dence.  The district court simply accepted the presentence report’s summary of the state charging papers.  The prior convictions also did not support the departure.  They were municipal violations and other petty offenses which the guidelines have already found un­worthy to include in a criminal history score.  U.S. v. Short, 4 F.3d 475 (7th Cir. 1993).

 

7th Circuit rejects departure for dismissed charges where no finding de­fendant committed the crimes. (514) The dis­trict court departed upward and sentenced defendant as if he were a career of­fender based on six charges which had been dis­missed.  Defen­dant only had one prior conviction for a crime of vi­olence.  The 7th Circuit reversed the de­parture.  First, although judges may consider dis­missed charges as a basis for departure, it is the prior criminal conduct that supports the depar­ture.  Thus, the judge must independently find that defen­dant committed the crimes.  Second, the court failed to determine the number of criminal history points necessary to reflect a more appropriate crimi­nal his­tory score, but instead went straight to the ca­reer of­fender guideline.  Only real convictions, and not charges, support a career offender sentence under §4B1.1.  Efforts to approximate the seriousness of a criminal history must be treated as §4A1.3 provides.  U.S. v. Ruffin, 997 F.2d 343 (7th Cir. 1993).

 

7th Circuit rejects government’s post hoc justifica­tion for scope of departure. (514) The district court departed from criminal his­tory category I to III because defendant con­tinued his extortionate collec­tion of loans while incarcerated pending trial.  Though finding the grounds for departure adequate, the 7th Circuit disapproved the district court’s failure to explain why defendant’s his­tory more closely re­sembled those of defen­dants in category III than those of defendants in category I.  The court refused to consider the government’s argument that defen­dant’s conduct should be analogized to the commis­sion of an additional offense for which he would have been sentenced in excess of one year, resulting in three additional criminal history points and moving defendant into cat­egory III.  It would be improper to consider this without evidence that the district court had actually relied on that basis.  U.S. v. Tai, 994 F.2d 1204 (7th Cir. 1993).

 

7th Circuit rules court failed to adequately explain downward criminal history depar­ture. (514)) The 7th Circuit ruled that the district court failed to adequately explain its reasons for a downward depar­ture from criminal history category III to I.  “Reasons” means something more than conclusions.  Here, al­though the court concluded that de­fendant’s criminal history overrepresented his actual criminal conduct, the court did not explain which convictions did not warrant consideration.  If the court accepted defen­dant’s counsel’s dubious argument that two different assault convictions against the de­fendant’s spouses and the driving while im­paired conviction were in­significant, the court had to state why in order to jus­tify the depar­ture.  Moreover, the court may have consid­ered defendant’s employment record and fam­ily circumstances when deciding to de­part.  Such matters are not ordinarily rele­vant in determining whether to depart.  U.S. v. Eiselt, 988 F.2d 677 (7th Cir. 1993).

 

7th Circuit rejects attempted escape as grounds for departure but would permit obstruction en­hancement. (514) The 7th Circuit re­jected an upward departure based on defendant’s at­tempted escape from cus­tody prior to trial.  The court agreed with the 8th Circuit’s decision in U.S. v. Cox, 921 F.2d 772 (8th Cir. 1990) that an attempted escape did not justify a depar­ture.  The ap­pellate court also disagreed with the dis­trict court’s determi­nation that only an “arbitrary” dis­tinction between section 4A1.1(d) and (e), (pre-trial and post-trial de­tention), prevented the attempted escape from being included in defendant’s criminal history.  The Sen­tencing Commission could rationally decide that one who has been convicted of a crime is more dangerous than someone who has not yet been con­victed.  How­ever, the court said the attempted escape would have war­ranted a two-level enhancement in of­fense level for ob­struction of justice under section 3C1.1.  Judge Kane dis­sented. U.S. v. Connor, 950 F.2d 1267 (7th Cir. 1991).

 

7th Circuit rejects departure for prior sim­ilar of­fenses because defendant already received en­hancement. (514) The district court departed upward in part because the similarity be­tween defen­dant’s in­stant convic­tion for interstate transportation of stolen property and his 1975 con­viction involving stolen prop­erty showed a need for greater de­terrence.  The 7th Cir­cuit re­jected this as a proper ground for departure be­cause defen­dant had already received a four-level en­hancement under guideline section 2B1.2(b)(3)(a) for being in the busi­ness of re­ceiving and selling stolen property.  This en­hancement ade­quately reflected the need for extra deterrence be­cause only those who have previ­ously engaged in sig­nificant illegal con­duct simi­lar to the instant offense would re­ceive such an enhance­ment.  Judge Kane dis­sented.  U.S. v. Connor, 950 F.2d 1267 (7th Cir. 1991).

 

7th Circuit rejects related cases as grounds for up­ward departure. (514) The district court departed up­ward in part be­cause several of defendant’s prior con­victions were excluded from his criminal history calcu­lation because they were considered re­lated un­der sec­tion 4A1.2.  The 7th Circuit held that the re­lated cases were not an ap­propriate ground for de­parture.  Defen­dant’s situa­tion was not similar to the example in the guidelines, where a number of inde­pendent cases are consolidated for sentenc­ing.  Here, the related crimes all occurred on or near  the same day.  The court re­jected the suggestion that crimes must have been against the same victim in order to be related.  U.S. v. Connor, 950 F.2d 1267 (7th Cir. 1991).

 

7th Circuit rejects criminal history depar­ture based on heinous prior offense. (514) The district court de­parted up­ward from criminal history category II to cate­gory VI be­cause one of defendant’s prior convictions was for a brutal, execution-style murder.  The 7th Cir­cuit reversed, ruling that this was an inappropriate ground for departure.  Defen­dant was assigned criminal history points for the prior con­viction as mandated by guideline section 4A1.1.  The court agreed that the practice of weighing identically all prior sen­tences of a length greater than one year was “somewhat in­discriminate,” but “to allow up­ward depar­tures on the basis of the nature of a considered offense would ren­der that very choice meaningless.”  The Sen­tencing Commis­sion chose to award defendants three criminal history points for every conviction with a sentence of greater than one year, regard­less of the nature of the un­derlying conduct.  U.S. v. Morri­son, 946 F.2d 484 (7th Cir. 1991).

 

7th Circuit rejects old summary court martial as basis for upward criminal history depar­ture. (514) The 7th Cir­cuit found that it was error for the district court to depart based in part upon a 1969 summary court martial that did not ap­pear in defendant’s criminal history cal­culation.  First, the court martial hap­pened over 19 years earlier, and resulted only in a fine.  Guideline § 4A1.2(e)(3) expressly pro­hibits a court from counting such a sen­tence in a defendant’s criminal his­tory, which is evidence that the sentencing com­mission ade­quately considered this circumstance.  Second, the guidelines also expressly prohibit counting military sen­tences im­posed by a summary court martial.  Thus, the Sen­tencing Commission al­ready considered this factor and de­termined that it was inappropriate in calculating criminal history.  U.S. v. Terry, 930 F.2d 542 (7th Cir. 1991).

 

7th Circuit reverses as unreasonable an up­ward depar­ture of four times the guideline range. (514) Defendant was con­victed of mail­ing threatening letters, which re­sulted in a guideline range of 30 to 37 months.  The dis­trict court de­parted upward and imposed the statutory maxi­mum of 120 months, based in part on the fact that defendant had previ­ously killed a police offi­cer, but had been acquitted on self-defense grounds.  The 7th Circuit found the extent of the de­parture unreasonable.  A de­fendant’s past cannot justify an increase in criminal his­tory category exceed­ing the level that would have been appropriate had the facts the court relied upon for the depar­ture been expressly considered in calcu­lating de­fendant criminal history.  Here, even if defendant had been convicted of killing the officer, this would not have increased defendant’s criminal his­tory category to the level imposed by the district court.  U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).

 

7th Circuit rejects 10-year-old dissimilar petty offenses as grounds for departure. (514) The district court de­parted upward based in part on defendant’s eight con­victions for minor of­fenses that were not included in his criminal history score.  Five of them were more than 10 years old with sen­tences of less than 13 months.  The other three re­sulted in sentences of less than 30 days.  The 7th Circuit rejected this as a ground for an upward criminal history departure.  The guidelines expressly provide that remote, dissim­ilar minor offenses should not be included in a defendant’s criminal his­tory.  How­ever, the guidelines do permit con­victions for petty of­fenses with sentences of less than 30 days to be counted if the offenses are similar to the instant offense.  Since this was not the case, it was improper for the dis­trict court to con­sider the prior convictions as a grounds for de­parture.  U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).

 

7th Circuit rejects mental health and likeli­hood of recidi­vism as grounds for up­ward criminal history de­parture. (514)  The district court departed upward at least in part be­cause it found that defendant’s mental in­stability made it more likely that he would commit addi­tional offenses.  The 7th Circuit vacated the sentence based upon the extent of the de­parture, and then noted that “[m]ental health is not a solid basis on which to de­part upward.”  Guideline § 5H1.3 bans upward de­partures on this basis.  A defendant’s unusual likelihood to commit more crimes might be a proper basis for de­parture, but this overlaps the recidivism penalty built into the guidelines.  Here, defendant already re­ceived three crimi­nal history points under guideline § 4A1.1(e) for committing the current offense while under supervision.  A belief that defen­dant was likely to con­tinue commit­ting of­fenses “cannot support a substantial increase above this, or the limit on the recidivism penalty built into the guidelines would be defeated.”  U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).

 

7th Circuit holds that continuing to deal in cocaine while out on bond is grounds for up­ward departure. (514) Defen­dant pled guilty to various drug trafficking offenses, and the dis­trict court departed upward from the guide­lines after it found that he had become in­volved in a cocaine incident while out on bond.  The 7th Circuit affirmed the upward departure, holding that the trial judge was justified in con­cluding that a criminal history category of I did not ade­quately reflect the seri­ousness of the defendant’s past crimi­nal conduct or the likeli­hood that he would commit other crimes.  The commis­sion of the offense while on bond clearly indi­cated a potential to commit future crimes which was not ac­counted for. The de­gree of departure was reasonable be­cause the sentence was within the guideline range for crimi­nal history category II.  U.S. v. Franklin, 902 F.2d 501 (7th Cir. 1990).

 

7th Circuit finds criminal history departure unreason­able and based on improper factor. (514) Defendant was con­victed of one count of dealing in firearms with­out a license and one count of being an ex-felon in pos­session of a firearm.  The district court departed up­ward, relying on two factors: 1) the defendant had re­cently been convicted and sentenced on a co­caine charge in state court, and 2) the guide­lines did not take into ac­count the fact that this was defendant’s second convic­tion for being an ex-felon in pos­session of a firearm.  The de­parture was double the maxi­mum criminal history category of VI.  The 7th Circuit re­versed.  The departure for the same offense was proper since similarity between previous convictions and the charged of­fense supports a finding of inadequate criminal history.  But de­parture based on the state conviction was im­proper be­cause it was included in the criminal history category.  Moreover, the length of de­parture was unreasonable.  U.S. v. Schmude, 901 F.2d 555 (7th Cir. 1990).

 

7th Circuit vacates criminal history departure for lack of adequate findings. (514) The de­fendant was convicted of armed robbery of a credit union.  The district court de­parted up­ward, enhancing both the defendant’s crimi­nal his­tory category and offense level in sentencing him to 130 months.  The 7th Circuit vacated the sentence be­cause the district court failed to identify any factor not already consid­ered by the sentencing commission.  The court noted that when enhancing a defendant’s criminal history category, the court must consider the higher criminal history categories.  “[C]ourts are directed to look at the higher categories and determine if the defen­dant closely resem­bles other defen­dant’s who belong in the same category.”  In this case the district court did not make these requisite findings.  U.S. v. Terry, 900 F.2d 1039 (7th Cir. 1990).

 

7th Circuit suggests that reliance on “relevant conduct” may make departure unnecessary. (514) The district court departed upward on the ground that defendant’s crimi­nal history category was inadequate because he kept dealing in drugs after his arrest, and he com­mitted more crimes than those of which he had been convicted.  The court also stated that de­fendant sold more cocaine than the 5-1/2 ounces charged and that he bought stolen property, a crime with which he had not been charged.  The 7th Circuit reversed the depar­ture because the dis­trict court failed to explain why it selected 120 months.  The court stated that depar­tures should be “disciplined” and that it is possible to for­mulate approaches that “link the extent of departure to the structure of the guide­lines.”  The court also noted that the judge failed to con­sider the effect of the “relevant conduct” section of the guidelines, § 1B1.3, noting that “the best way to jus­tify a higher sentence is to compute the full quan­tity of the drugs involved.”  U.S. v. Ferra, 900 F.2d 1057 (7th Cir. 1990).

 

7th Circuit holds enhancement of sentence due to underrepre­sentation of crim­inal his­tory must follow guideline procedures. (514) Defendant was con­victed of bank robbery.  The district court found that a criminal history I category under­represented his past conduct, and therefore im­pos­ed a sen­tence of 45 (rather than 30-37) months by adding 1/4 of the guideline sentence onto the guideline term.  This re­sulted in his criminal history cate­gory being set at III.  He appealed.  The Seventh Circuit vacated the sentence, stating that § 4A1.3 requires the sen­tencing judge to go through a “compara­tive pro­cess” in de­ter­mining whe­ther to enhance a de­fendant’s criminal history cate­gory.  Here, all the judge did was mathe­mat­ically en­hance the guideline range.  This failure to follow the pro­cedures mandated by the guidelines ren­dered the sen­tence illegal.  It was thus an “unreasonable” sentence out­side the proper range under 18 U.S.C. § 3742 (e)(2).  U.S. v. Miller, 874 F.2d 466 (7th Cir. 1989).

 

8th Circuit says court adequately explained denial of criminal history departure. (514) Defendant pled guilty to drug charges and was sentenced to 105 months, which fell below his guideline range of 121-151 months. He argued that the court procedurally erred by failing to explain adequately why it denied his motion for a down­ward departure based on an overstated criminal history. Defendant did not specifically object at sentencing to the adequacy of the district court’s explanation, and the Eighth Circuit found no plain error. The district court adequately considered and then rejected each of defen­dant’s arguments for a downward departure. The court explicitly considered defendant’s argument that his criminal history was overstated because his offenses all stemmed from his addictions. The sentence was not substantively unreasonable. The court weighed all of the factors defendant mentioned against the seriousness of the offense. The court did not abuse its discretion simply by weighing these factors differently than defendant. U.S. v. Dace, 660 F.3d 1011 (8th Cir. 2011).

 

8th Circuit rejects as frivolous claim that criminal history overstated background. (514) Defendant argued that the district court’s sentence was substantively unreasonable because the court refused to grant a down­ward departure or vari­ance after rejecting defendant’s request to exclude two uncounseled misdemeanor convic­tions in calculating his criminal history points. The Eighth Circuit found no abuse of discretion. Defendant’s sentence fell within his advisory guideline range, and therefore, the appellate court could apply a presumption of reasonableness. Defendant had 19 adult convictions beginning in 1971, when he was 18 years old. Fourteen of those convictions were assessed no criminal history points. Given this record, the contention that he deserved a downward departure or variance because his Criminal History Category of VI overstated his criminal history was frivo­lous. U.S. v. Deans, 590 F.3d 907 (8th Cir. 2010).

 

8th Circuit says court did not adequately explain large upward criminal history departure. (514) De­fendant was convicted of two counts of assault with a dangerous weapon. She was in criminal history Category I, but had three prior convictions that did not receive points because of their age. The district court departed upward to criminal history Category VI, taking into ac­count defendant’s “long and detailed history of violence, including the use of dangerous weapons, knives, forks and other things, biting people.” The Eighth Circuit held that these findings were not adequate to explain and support the departure. Defendant had only one relatively serious prior conviction. Others were alcohol-related assaults, many of which involved mutual aggression in domestic violence situations. Others were actions during defendant’s childhood (bullying, stealing lunch money, and stabbing with a pencil when defendant was in elementary and middle school). Failing to adequately explain an upward departure is a significant procedural error. U.S. v. Azure, 536 F.3d 922 (8th Cir. 2008).

 

8th Circuit affirms downward variance in crack cocaine case. (514) Defendant pled guilty to crack cocaine and firearms charges. Although his ad­visory guideline range was 235-293 months, the district court sentenced defendant to 132 months on the drug charges and 60 months on the firearms charges, to be served consecutively. The government argued that the court abused its discretion by departing one criminal history category under § 4A1.3, and that the court impermissibly took into account its disagreement with the sentencing guidelines for crack cocaine. The govern­ment urged the appellate court to reverse the lower court’s “extraordinary variance” because there were no extraordinary circumstances to support it. The Eighth Circuit found no error. Whether the court’s decision to depart downward under § 4A1.3 was considered a “procedural” aspect of calculating the guideline range, or part of the “substantive” reasonableness review, it was evident that the district court would have reached the same outcome under § 3553(a), and there was no abuse of discretion in concluding that defendant’s criminal history differed meaningfully from the active violent behavior often associated with defendants in criminal history category VI. In addition, the district court did not abuse its discretion in concluding that the crack cocaine guidelines yielded a sentence “greater than necessary” to achieve the purposes of § 3553(a). See Kimbrough v. United States, 128 S. Ct. 558 (2007). Finally, in light of the Supreme Court’s decision in Gall, the government’s argument that the sentence was unreasonably lenient due to the absence of “extraordinary circumstances” failed. Gall precluded requiring “extraordinary circumstances” to justify an “extraordinary variance.” U.S. v. McGhee, 512 F.3d 1050 (8th Cir. 2008).

 

8th Circuit holds that limited criminal history and drug-free status did not support large variance. (514) Defendant pled guilty to conspiracy to distribute 50 or more grams of cocaine base. Although his applicable guideline range was between 70-87 months, the district court sentenced him to 30 months’ imprisonment. As reasons for the variance, the court cited defendant’s good record, and the fact that he had been drug-free for the previous nine months. The Eighth Circuit held that the variance was not supported by the record. The further the district court varies from the presumptively reasonable guideline range, the more compelling the justifi­ca­tion based on the § 3553(a) factors must be. The 30-month sentence was a 57 percent down­ward variance from the bottom of defendant’s advisory guideline range. Defendant’s limited criminal history was already reflected in his guideline sentence (he was assigned a criminal history of I) and therefore it was unreasonable for the court to use that criminal history as justifi­cation for an extraordinary variance. In addition, while remaining drug-free for nine months was commendable, it was not an extraordinary factor sufficient to justify such a large variance from the presumptively reasonable guideline range. U.S. v. Bryant, 446 F.3d 1317 (8th Cir. 2006).

 

8th Circuit rejects downward departure for career offender with 12 misdemeanor convic­tions in 10 years since last felony conviction. (514) The district court found that defendant’s status as a career offender overstated defendant’s threat to the community, noting that it had been over ten years since defendant had been convicted of his prior felonies, that he had finished his parole, and that his three felony convictions, although distinct, were “functionally consoli­dated.” A downward departure from career offender status may be appropriate “for a relatively young defendant with a brief criminal career.” U.S. v. Hutman, 399 F.3d 773 (8th Cir. 2003). The Eighth Circuit reversed the downward departure. Defendant was 36 years old at the time of his current conviction. His first criminal conviction was at the age of 16, and his criminal behavior has been continuous since then. The district court did not give sufficient weight to the fact that defendant had been convicted 12 times, albeit on misdemeanor charges, between the instant felony conviction and his last felony conviction in 1992. His convictions for assault, domestic abuse, receipt of stolen property, tres­pass and other crimes suggested that defendant had not been deterred from continued criminal behavior. U.S. v. Wallace, 377 F.3d 825 (8th Cir. 2004).

 

8th Circuit rejects downward departure based on lack of criminal history and diminished capacity. (514) Defendant was convicted of interstate travel with the intent to engage in a sexual act with a minor. The district court granted defendant’s motion to depart downward after finding that defendant lacked a criminal history, was unlikely to reoffend, and suffered from diminished capacity. The court also granted a departure based upon a convergence of these facts. The Eighth Circuit reversed. Lack of criminal history can never furnish the basis for a downward departure because the guidelines have already set Category I to accommodate the first-time offender. The district court did not specify any facts relevant to rehabilitation that made defendant’s case exceptional. The doctor’s report submitted by defendant was insufficient, by itself, to support a finding of diminished capacity. Although the doctor diagnosed defendant as suffering from depression and anxiety, as well as a language disorder, the doctor did not suggest that these conditions impaired defendant’s ability to understand the wrongfulness of his behavior or his ability to control behavior he knew was wrong. U.S. v. McCart, 377 F.3d 874 (8th Cir. 2004).

 

8th Circuit holds that court understood discretion to make criminal history departure. (514) In rejecting defendant’s request for a criminal history departure, the district court stated that “If I thought it wasn’t an abuse of discretion, I’d go ahead and grant [defendant’s] departure motion, but I have to follow the law and I think that you have to look at the entire criminal history … I can’t in good faith say that the criminal history is overstated for purposes of a downward departure.” The Eighth Circuit ruled that this statement indicated the court understood its authority to departure under § 4A1.3, but that a departure would be an abuse of discretion given defendant’s criminal history. Therefore, the refusal to depart was unreviewable. U.S. v. Williams, 340 F.3d 563 (8th Cir. 2003).

 

8th Circuit says downward departure from career offender range was not warranted. (514) Finding that defendant’s career offender status overstated the seriousness of his criminal history, the district court departed downward from criminal history category VI to III, and from offense level 34 to 30. The Eighth Circuit reversed. Circuit caselaw says a downward departure from career offender status may be appropriate for a relatively young defendant with a brief criminal career, but even in those instances a departure is proper only if it “accurately reflect[s] the entire record of the defendant’s criminal history.” Defendant was not a young defendant with a brief criminal history. He broke the law in his teens, twenties, thirties and now with this offense, his forties. He had six criminal convictions spanning 21 years and four decades of his life. Defendant was well into his adult years when he committed the two predicate offenses that triggered the career offender status. Prior stints of probation did not deter defendant from the commission of further crimes. Moreover, defendant had a serious con­viction for sexual assault. The district court apparently discounted this conviction because defendant received no criminal history points for it. However, the seriousness of the defendant’s entire criminal history must be considered before departing from the career offender provision. U.S. v. Hutman, 339 F.3d 773 (8th Cir. 2003).

 

8th Circuit says defendant’s criminal history category did not significantly over represent seriousness of criminal history. (514) Defendant was convicted of illegal reentry after deportation subsequent to an aggravated felony conviction. The district court ruled that criminal history category III significantly overrepresented defen­dant’s actual criminal history, and reclassified him as a category II. Given the serious nature of his prior felony conviction and its temporal proximity to the current offense, the Eighth Circuit concluded that the court erred. Section 4A1.3 cites as an example of an overrepresented criminal history “the case of a defendant with [only] two minor misdemeanor convictions close to ten years prior to the instant offense.” In contrast, defendant was arrested for the current offense only six months after he had been released from prison and deported for his last offense – the attempted importation of almost 90 pounds of marijuana. In fact, defendant was still on supervised release for his prior offense at the time he illegally reentered the U.S. U.S. v. Dyck, 334 F.3d 736 (8th Cir. 2003).

 

8th Circuit reverses downward departure from career offender guideline. (514) Defendant qualified as a career offender based on two prior felony convictions, robbery and sexual assault in the first degree. He successfully argued in the district court that the applica­tion of the career offender enhancement would overstate the seriousness of his prior criminal record, because his robbery conviction, although “technically” a crime of violence, was essentially a non-violent crime. The Eighth Circuit reversed a downward departure from the career offender guideline, holding that the district court failed to give sufficient weight to defendant’s other felony conviction for sexual assault in the first degree. It was improper to “ignore the details of such a heinous crime.” After breaking into a house, defendant put a knife to an occupant’s throat and forced her upstairs where he sexually assaulted her three times. The victim was led to believe that defendant would possibly kill her. Defendant made three trips in and out of the house taking various items. “If, as the District Court thought, the robbery was not serious, even though technically a crime of violence, the subsequent offense of sexual assault in the first degree … was so serious, threatening, and violent as to compensate for any mitigating aspects of the robbery.” U.S. v. Butler, 296 F.3d 721 (8th Cir. 2002).

 

8th Circuit holds that court may not depart below statutory minimum for armed career criminal. (514) Defendant pled guilty to being a felon in possession of a firearm. Because he had at least three prior felony convictions, he was subject to a statutory minimum sentence of 15 years’ imprisonment under 18 U.S.C. § 924(e). The district court departed down under § 4A1.3 from a range of 188-235 months to the minimum 180-month sentence. The court stated that but for the required minimum sentence, it would have sentenced defendant to a shorter term of imprisonment. The Eighth Circuit agreed that the district court lacked authority to depart below the statutory minimum. The only authority for departing below a statutorily mandated minimum sen­tence is in 18 U.S.C. §§ 3553(e) and (f), which apply only when the government makes a substantial assistance motion or the defendant qualifies for safety valve protection. Neither condition existed here. U.S. v. Villar, 184 F.3d 801 (8th Cir. 1999).

 

8th Circuit rejects downward departure where some of the grounds were improper. (514) Defendant was convicted of abusive sexual contact after he forced himself on his victim while she was asleep. When she awoke she pushed defendant away and freed herself. The district court departed downward because the facts did not fall within the heartland of offenses proscribed by 18 U.S.C. § 2244(a)(1). The court also considered the fact that defendant had no criminal history, he refrained from criminal behavior after his trial, and his actions represented aberrant behavior. The Eighth Circuit remanded because some of the factors considered by the court were improper. The case did fall outside the heartland of sexual abuse cases. Although the amount of force used to commit the crime was sufficient to sustain a conviction under § 2241, it was virtually the least amount of force that could do so. However, the fact that defendant had no prior criminal history did not support a departure. Although post-offense rehabilitation may, if sufficiently unusual, support a downward departure, the record showed only that defendant had not broken the law since he was convicted. Defendant’s conduct was not a single act of “aberrant” behavior. Defendant’s acts were not “spontaneous and seemingly thoughtless”; they must of necessity have involved an amount of planning inconsistent with spontaneity. U.S. v. Allery, 175 F.3d 610 (8th Cir. 1999).

 

8th Circuit rules that criminal history down­ward departure was abuse of discretion. (514) Defendant was classified as a career offender, but the district court made a criminal history down­ward departure. Factors the court considered included defendant’s age when he committed the predicate felonies, some of the circumstances of their occurrence, and how the state courts had handled the cases. The Eighth Circuit ruled that the downward departure was an abuse of discre­tion, finding the court com­mitted a clear error of judgment in its assessment of many significant aspects of defen­dant’s criminal history. Defendant had four serious encounters with juvenile author­ities. His adult record began at age 16 and continued almost continually until the present. Defendant’s criminal career was neither brief nor minor in nature. He had 18 criminal history points, 5 more than the 13 points it ordinarily takes to fall within category VI. Defendant was a recidivist whose criminal conduct escalated as he grew older. Neither probation, incarceration nor parole kept him from resuming his life of crime. U.S. v. McNeil, 90 F.3d 298 (8th Cir. 1996).

 

8th Circuit says court may not base departure on prior arrests. (514) Defendant fell within criminal history category I. The district court departed to category III, based on prior juvenile arrests, and pending charges against defendant. The 8th Circuit found that only certain of the incidents in defendant’s criminal history could be considered as the basis for an upward criminal history departure. The district court could consider defendant’s shoplifting crimes listed in the PSR, because defendant did not dispute the PSR’s version of his criminal history. None of the other juvenile incidents could be considered, however. The charge of resisting arrest provided no facts, thus, it was merely a record of arrest. Later shoplifting and driving without a license charges could not be considered because they were nothing but charges. As to the pending charges, the PSR established only that defendant possessed a gun without a permit. Two other charges were merely arrests and could not be considered. Thus, the court should have limited its consideration to the shoplifting and gun possession incidents when it departed upward. U.S. v. Joshua, 40 F.3d 948 (8th Cir. 1994).

 

8th Circuit says first-time offender status does not justify a downward departure. (514) Defendant argued that she was entitled to a downward departure based on aberrant behavior, because she had no prior convictions relating to a controlled substance.  The 8th Circuit held that her first-time offender status did not justify a downward departure.  The guidelines have adequately accounted for the absence of a prior criminal record in the structure of the sentencing table.  U.S. v. Bieri, 21 F.3d 811 (8th Cir. 1994).

 

8th Circuit rejects departure for first-time offender, nature of offense, age, and family responsibilities. (514) Finding the guideline range of 51 to 63 months “unduly harsh,” the district court departed downward to six months with work release, citing the absence of prior convictions, the “relatively minor” nature of the offense, defendant’s advanced age, and the need to care for his family.  The 8th Circuit reversed.  Section 4A1.3 notes that criminal history category I is reserved for first offenders.  Defendant’s offense conduct under § 2S1.1 (advising a drug dealer client how to structure a cash deposit to avoid reporting requirements) was not merely technically unlawful.  Although defendant was supporting three young sons, his family had multiple sources of income and a substantial net worth.  Defendant was 67 years old and in good health, and thus his age also did not warrant a downward departure.  However, on remand, the court should examine in closer detail whether defendant deserved a four level enhancement under § 2S1.1(b) based on knowledge that the laundered funds were illegal drug proceeds.  Senior Judge Heaney dissented.  U.S. v. Goff, 20 F.3d 918 (8th Cir. 1994).

 

8th Circuit reverses downward departure based on variety of invalid factors. (514) The district court departed downward, citing a variety of factors.  The 8th Circuit re­manded because it could not de­termine whether the court relied on an invalid ground.  The court then discussed each ground.  De­fendant’s status as  a first-time offender was an improper ground for departure.  Family ties and re­sponsibilities and employment record are not ordi­narily relevant.  A defen­dant’s post-offense rehabilita­tive efforts do not warrant a departure absent ex­traordinary circumstances.  The short period of time in which the offense took place would seem an un­reasonable ground for departure, since the conduct only terminated on arrest.  However, a departure based on a single act of aberrant behavior could be considered.  The record did not show that the gov­ernment acted egre­giously to warrant a departure.  Finally, the totality of the circumstances might con­verge to create a situation not contemplated by the Guidelines, but it was unclear whether the court re­lied on the totality of the circum­stances here. U.S. v. Simpson, 7 F.3d 813 (8th Cir. 1993).

 

8th Circuit rejects downward departure where prior DWI violations were old. (514) Defen­dant received four criminal history points based on three prior DWI convictions:  two in 1981 and one in 1984.  Defendant ar­gued that the district court should have de­parted downward because the “stale and re­mote traffic violations” should not increase his sentence from a minimum of 70 months to a maxi­mum of 108 months.  The 8th Cir­cuit rejected the claim.  Section 4A1.3 sug­gests that a district court “may” consider a downward departure in cases where the seri­ousness of a defendant’s criminal history is overstated.  Here, the court considered, but rejected, such a downward departure.  “The exercise of discre­tion by a district court to refuse to depart downward is nonreviewable”  U.S. v. Mahler, 984 F.2d 899 (8th Cir. 1993).

 

8th Circuit affirms inclusion of juvenile of­fense de­spite al­leged inequities associated with juvenile sentences. (514) Defendant received three criminal history points be­cause he had been on parole from a ju­venile offense for less than two years at the time of the current offense.  De­fendant contended that the in­equities associated with the juve­nile sen­tence should have caused the district court to exclude these points from his crimi­nal history.  In particu­lar, defen­dant al­leged that he was incarcerated for a longer period as a juvenile than he would have been for commit­ting the same offense as an adult.  If he had been released sooner, he would not have still been on pa­role at the time of the in­stant offense.  The 8th Circuit af­firmed the inclu­sion of the juve­nile offense, since all it had was de­fendant’s “speculation” as to how long he would have served if he had been convicted as an adult. U.S. v. Watts, 950 F.2d 508 (8th Cir. 1991).

 

8th Circuit rejects downward criminal history departure based upon prior DWI violations. (514) Defendant contended that his criminal history category was overstated because of two 1982 convictions of driving while intoxicated.  The 8th Circuit disagreed, since these are not minor traffic infractions under guideline § 4A1.2(c).  Moreover, the district court’s refusal to depart downward from the guide­lines range is nonreviewable.  U.S. v. Fuller, 942 F.2d 454 (8th Cir. 1991).

 

8th Circuit rules failure to follow procedures for depar­ture based upon underrepresentative criminal history re­quires reversal. (514) The Eighth Circuit held that the district court erred in departing from a criminal history category IV to VI because it “failed to compare the de­fendant’s history to that of most defendants with a cate­gory of VI criminal history.”  Thus the court vacated the sentence and remanded the case to the district court so it could deter­mine whether level V would be represen­tative of the defendant’s crimi­nal history.  However, it agreed with the district court that level IV was indeed underrep­resentative.  U.S. v. An­derson, 886 F.2d 215 (8th Cir. 1989).

 

9th Circuit says diversionary disposition properly counted in criminal history score. (514) Defendant was convicted of transporting child pornography. The district court calculated his criminal history score based in part on defendant’s admission in 2003 that he was under the influence of a controlled substance, in violation of a California statute. Defendant entered and completed a diversionary disposition for that offense, with the result that his offense was deemed to have never occurred under California law. Under § 4A1.2(f), however, diversionary dispositions count toward a defendant’s criminal history score. Defendant argued that including the diversionary disposition overstated his criminal history score because he could have had the disposition set aside. The Ninth Circuit held that even if defendant had had the conviction set aside it would still count toward his criminal history score and that the district court reasonably counted it in his criminal history score. U.S. v. Stoterau, __ F.3d __ (9th Cir. April 29, 2008) No. 07-50124.

 

9th Circuit says pre-Booker departure based on criminal history violated Apprendi. (514) Under § 4A1.3, a district court may depart upward if the defendant’s guideline range inadequately represented the seriousness of defendant’s prior criminal conduct and the likelihood of recidivism. The Ninth Circuit held that upward departures under § 4A1.3 involve facts beyond the fact of a prior conviction and therefore that under the mandatory guidelines regime in effect before U.S. v. Booker, 543 U.S. 220 (2005), a departure based on the defendant’s prior criminal history violated the rule announced in Apprendi v. New Jersey, 530 U.S. 4667 (2000), which requires that any fact, other than the fact of a prior conviction, that increases a defendant’s sentence must be admitted by the defendant or proved beyond a reasonable doubt to the jury. U.S. v. Kortgaard, 425 F.3d 602 (9th Cir. 2005).

 

9th Circuit reverses upward departure for defendant with 95 prior convictions. (514) Defendant had 35 prior convictions in state court (mostly for petty theft or shoplifting) and 60 prior convictions in tribal court (mostly for disorderly conduct). Because of the nature of defendant’s prior convictions, defendant fell into criminal history category III. The district court departed upward under § 4A1.3 on the ground that the defendant’s criminal history score did not adequately “reflect the seriousness of the defendant’s past criminal conduct.” The Ninth Circuit held that “the seriousness of a defendant’s prior convictions,” and not just the number of prior convictions, “must be a significant factor in the decision to depart under § 4A1.3. Applying this analysis, the court held that the district court erred in departing upward. U.S. v. Bad Marriage, 392 F.3d 1103 (9th Cir. 2004).

 

9th Circuit reverses downward departure for alien with two prior felonies, under Note 5 to 2L1.2 (514) Former Application Note 5 to § 2L1.2 (repealed November 1, 2001) authorized a downward departure for a defendant convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, whose sentence was increased because he had a prior aggravated felony. To qualify for a departure, the defendant must have only a single prior felony conviction, the prior felony cannot be a violent or firearm offense, and the defendant must have been sentenced to less than a year for the prior offense. Relying on the application note, the district court departed downward in sentencing defendant even though he had two prior felony convictions. The Ninth Circuit reversed, holding that a defendant must meet all three of the requirements of the application note to qualify for a departure. U.S. v. Machiche-Duarte, 286 F.3d 1153 (9th Cir. 2002).

 

9th Circuit reverses departure where criminal history did not show “escalating seriousness.” (514) Reaffirming its ruling in U.S. v. Singleton, 917 F.2d 411 (9th Cir. 1990), the Ninth Circuit held that the mere fact that a defendant has significantly more criminal history points than the 13 required for category VI will not, in and of itself, support a departure. There must be a finding that the offenses are of escalating seriousness and that prior convictions have not affected the defendant’s propensity to commit crimes. Here, the defendant was an Armed Career Criminal under § 4B1.4, with prior offenses that the district court analogized to category VIII in departing upward. The Ninth Circuit reversed, finding that the offenses on which the court relied had not escalated in seriousness over the years, and therefore did not show that defendant’s prior record was “significantly more serious” than other defendants in category VI. U.S. v. George, 56 F.3d 1078 (9th Cir. 1995).

 

9th Circuit reverses where court failed to specify factual basis for criminal history departure. (514) In sentencing defendant Castillon the court departed upward to criminal history category II, pointing to the presentence report and “that which has been stated here on the record.” But neither the presentence report nor the discussion during the sentencing hearing made any specific reference to past criminal activity by Castillon. The sentence was therefore vacated and remanded to the district court to specify the factual basis for the departure. U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).

 

9th Circuit says child molestation is not similar to passport falsification for departure purposes. (514) The government argued that the crimes were similar because defendant was motivated to falsify the passport application in order to escape an investigation into new child molestation charges. Thus, the government argued, the court could base its departure on the child molestation charges, even though they were fifteen years old, because they were “similar” to the present passport conviction. The 9th Circuit rejected the argument, noting that the two crimes have no characteristics in common and the fact that they were linked by the specific circumstances of this case was not viewed as relevant. U.S. v. Donaghe, 50 F.3d 608 (9th Cir. 1994).

 

9th Circuit reverses departure for failure to show likelihood of committing other crimes. (514) Defendant violated his probation by being convicted in state court of solicitation to commit assault and two counts of rape. In departing upward on revocation of probation, the district court relied on the presentence report which included defendant’s 1968 diagnosis as a homosexual deviant as a factor in departure. The 9th Circuit found this improper because homosexuality is no longer categorized as a psychiatric disorder. The court noted that the PSR’s notation that defendant was also diagnosed as an untreatable pedophile “might be a reason for believing that he will commit other crimes.” But “it is not at all clear from the PSR that the 25 year old psychiatric evaluation is still valid, or that a pedophile is likely to continue to molest children.” Accordingly the departure was reversed. U.S. v. Donaghe, 50 F.3d 608 (9th Cir. 1994).

 

9th Circuit reverses upward departure that was based on remote dissimilar priors. (514) Defendant was convicted of unarmed bank robbery. The district court departed upward from 63 months to 160 months on the ground that defendant’s criminal history category of IV did not adequately reflect the seriousness of his past criminal conduct or the likelihood of recidivism. On appeal, the 9th Circuit reversed because the district court relied on prior convictions that were older than 15 years which were dissimilar to the present robbery offense. These included convictions for trespassing, resisting arrest, possessing drugs and carrying a concealed weapon, and impersonating a police officer. It was, however, proper for the court to consider defendant’s 1968 conviction for 2nd degree robbery as this was “evidence of similar misconduct” to the present robbery offense. The case was remanded for resentencing. U.S. v. Smallwood, 35 F.3d 414 (9th Cir. 1994).

 

9th Circuit reverses criminal history de­parture above Category VI. (514) The dis­trict court departed upward from criminal history category VI because of defendant’s “constant” violations and the probation offi­cer’s conclusion that defendant’s 19 criminal history points placed him in a hypothetical category VIII.  Defendant, age 25, was con­victed of alien smuggling and had a prior criminal record of four misdemeanors and three felonies.  The Ninth Circuit reversed, finding defendant’s criminal history was not egregious enough to warrant departure above category VI.  None of the prior crimes in­volved physical assault and the fact that de­fendant had previously committed a similar offense was already considered in the offense level for alien smuggling.  Finally, the sheer number of a defendant’s criminal history points cannot justify an upward departure.  Departure above category VI is reserved for those whose records are extreme by com­parison to others in category VI.  U.S. v. Car­rillo-Alvarez, 3 F.3d 316 (9th Cir. 1993).

 

9th Circuit reverses criminal history de­parture based on remote dissimilar con­victions. (514) Previous 9th Circuit cases held that an upward departure may not be based on dissimilar prior convictions that are more than 15 years old.  In response to these decisions, the Guidelines were amended, effective November 1, 1992, to permit departures based on remote serious dissimilar conduct.  However that amend­ment did not apply to defendant’s offense, be­cause it was committed before the amend­ment.  Thus it was improper for the district court to consider defendant’s convictions in 1970 for trespassing, 1971 for resisting ar­rest, 1972 for drugs and carrying a concealed weapon, and 1976 for impersonating a police officer, because those offenses had nothing in common with the instant offense.  However, it was proper for the district court to consider defendant’s 1968 conviction for second de­gree robbery, because it was “evidence of similar misconduct.”  The case was remanded for resentencing.  U.S. v. Smallwood, 3 F.3d 1217 (9th Cir. 1993).

 

9th Circuit rejects basing departure on de­fendant’s clean record and lack of threat to public. (514) The district court’s second reason for departing was because the defen­dant had a clean record and posed no threat to the public.  The 9th Circuit held this was improper because the Commission consid­ered the fact that people with no criminal his­tory pose rela­tively little threat; “that’s what criminal history Cate­gory I is all about.”  Judge Tang dissented, arguing that departure was not clearly erroneous given the combina­tion of factors here.  U.S. v. Miller, 991 F.2d 552 (9th Cir. 1993).

 

9th Circuit reverses upward departure based on prior tribal court conviction. (514) Although a court may consider a tribal conviction in determining whether to depart, see section 4A1.3(a) p.s., the con­viction must qualify as an aggravating circumstance “of a kind or to a degree not adequately taken into consideration” by the guidelines.  Here, the defendant had been convicted in tribal court for breaking and entering and was sentenced to 30 days in jail.  The 9th Circuit ruled that the district court “did not find and simply could not have found, that because of this single tribal conviction, criminal history cate­gory IV significantly underrepresents the se­riousness of [defendant’s] criminal history.”  U.S. v. Luscier, 983 F.2d 1507 (9th Cir. 1993).

 

9th Circuit forbids basing extent of depar­ture on analogy to career offender guide­line. (514) The sole justification given by the district court for the ex­tent of its upward de­parture was that if defendant “had not had that one sentence set aside or he had been convicted on any of the criminal conduct that I have found him to be involved in, he would be a ca­reer criminal now.”  The 9th Circuit reversed, noting that U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991), forbids precisely this kind of analogy.  The court noted that under sec­tion 4A1.3 “the proper approach is to seek guidance by analogy to the criminal history cat­egories.”  U.S. v. Schubert, 957 F.2d. 694 (9th Cir. 1992).

 

9th Circuit holds that court may not justify degree of depar­ture by analogy to the career offender guidelines. (514) By the time of sen­tencing, the state of California had dis­missed the charge that would have made defen­dant a career offender, even though he had pleaded nolo contendere.  Nev­ertheless the district court departed up­ward on the ground that if the defendant had been con­victed, he would have been subject to the career of­fender guideline.  The 9th Circuit re­versed, holding that it is unreasonable to base a departure on an analogy to the career offender guidelines.  The career of­fender provisions make no ex­ception to the requirement of a conviction and are “too blunt an instrument” to serve as an analogy because they function as an “on/off switch.”  The case was remanded for resen­tencing. U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991).

 

9th Circuit rejects remoteness of prior convic­tion as a basis for downward departure. (514) Guideline § 4A1.2(e) already accounts for the remoteness of prior convictions by counting “any prior sentence of impris­onment exceeding one year and one month that was im­posed within fifteen years of the defendant’s com­mencement of the instant offense.”  Thus it was im­proper for the court to depart down­ward based upon the remoteness of the defen­dant’s prior convictions.  U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).

 

9th Circuit reverses downward departure based on fact that prior criminal history was “merely” a parole viola­tion. (514) Section 4A1.2(k) states in pertinent part, “revocation of pro­bation, parole, supervised release, spe­cial parole, or manda­tory release may affect the points for § 4A1.1(e) in re­spect to the re­cency of last re­lease from confinement.”  The 9th Circuit held that therefore the Commission adequately considered “the effects of a parole violation,” and the district court was in error to rely upon it in order to depart down­ward.  U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).

 

9th Circuit reverses criminal history depar­ture for fail­ure to explain extent of departure. (514) The 9th Circuit ruled that the district court sufficiently specified that defendant’s Level I criminal history category failed to re­flect his tribal criminal record of 16 offenses.  How­ever the court did not explain how this tribal criminal record warranted all or part of the 90 month upward de­parture.  The govern­ment con­ceded that the district court’s failure to explain the level of its upward depar­ture re­quired remand for resentencing.  U.S. v. Hoyun­gowa, 930 F.2d 744 (9th Cir. 1991).

 

9th Circuit reverses upward departure where district court failed to explain its reasons for the extent of de­parture. (514) The district court departed upward based on defen­dant’s prior criminal history and obstruction of jus­tice.  However the district judge “failed to ar­ticulate with sufficient particularly the extent to which he relied upon each factor in departing upward.”  The 9th Circuit remanded to the district court to enable it to “articulate the rea­sons for the departure and the extent to which it relies on each factor individually.”  With re­spect to criminal history the district court should rea­son by anal­ogy to the guidelines.  U.S. v. Ward, 914 F.2d 1340 (9th Cir. 1990).

 

9th Circuit upholds criminal history depar­ture even though court failed to explain why a sentence within the adjacent criminal history category would not have suf­ficed. (514)  Re­jecting a contrary statement in U.S. v. Cer­vantes-Lucatero, 889 F.2d 916, 919 (9th Cir. 1989), Judges Hall, Hug and Wiggins held “that a district court’s departed sentence may rea­sonably be higher than any sentence authorized by an adjacent criminal history category with­out the court having to explain why a sen­tence within the adjacent category would not have suf­ficed.”  The court distinguished the Cer­vantes-Lucatero statement as “probably dic­tum”, and as having been de­cided prior to the Ninth Circuit’s ruling that a district court’s de­parture is reviewed under the use of discretion standard.  Thus, although the district court’s failure to ex­plain why it departed as much as it did, is a “problem” the court ruled that “this does not by itself constitute a sufficient ground for resentencing.”  U.S. v. Montene­gro-Rojo, 908 F.2d 425 (9th Cir. 1990).

 

9th Circuit reverses upward departure based on crimi­nal history where not guided by other guidelines sen­tences. (514) A district judge may depart from the guidelines if the defen­dant’s criminal history score does not ade­quately reflect the seriousness of the defen­dant’s past criminal conduct.  Here, the district judge relied on events not reflected in de­fendant’s criminal history score — old convic­tions, a convic­tion reversed on ap­peal, and charges that never led to trial.  Judges Canby, Wiggins, and Fernandez found the departure improper because the district judge failed to be guided by the guideline range for defendants whose criminal history score was enough higher than defendant’s to reflect the true im­port of defendant’s criminal history.  The record lacked any evidence that the sentencing judge consid­ered guidelines sentences for de­fendants with analogous criminal histories.  U.S. v. Cota-Guerrero, 907 F.2d 87 (9th Cir. 1990).

 

9th Circuit finds first offender status is ade­quately con­sidered in sen­tencing guidelines. (514) The defendant argued that the guide­lines did not take into considera­tion his first of­fender status, and that the district court erred by not de­parting below criminal history Cate­gory I.  The 9th Circuit rejected the argu­ment, stat­ing that criminal history is accounted for in the guide­lines, and that any departure for that reason would be in­appropriate.  U.S. v. Bor­rayo, 898 F.2d 91 (9th Cir. 1989).

 

9th Circuit vacates departure based on dis­trict court’s statement that prior sentences were not severe enough. (514) The district court departed upward from the guide­lines, stating that the defendant’s criminal history cate­gory did not adequately reflect his state court con­victions “because the sentences im­posed on the basis of those convic­tions were not severe enough.”  The 9th Cir­cuit ruled that this “may or may not have been a proper ground for departure.”  But the court here failed to state the basis for its conclusion that the state sentences were too lenient.  Since the court was unable to review whether the de­parture was permissible or reason­able, the sentence was vacated.  U.S. v. Cer­vantes-Lu­catero, 889 F.2d 916 (9th Cir. 1989).

 

9th Circuit finds statement of reasons for de­parture was inadequate and required reversal. (514) The district court explained its decision to depart from the Sentenc­ing Guidelines as fol­lows:  “the defendant’s criminal history cate­gory signifi­cantly underrepresents the seri­ousness of the defendant’s criminal history, and the seri­ousness of the defendant’s criminal history more closely resembles that of defen­dants of a category VI criminal history.”  The 9th Circuit held that “this conclusory statement by the district court is in­adequate to permit meaningful appellate re­view.”  The district court must “set forth the specific as­pects of the defendant’s criminal history.”  Accordingly, the sentence was vacated.  U.S. v. Wells, 878 F.2d 1232 (9th Cir. 1989).

 

9th Circuit holds departure from guidelines is not per­mitted absent statement of reasons and specific find­ings. (514) The district court departed upward from the guidelines be­cause the guideline sentence did not ade­quately re­flect the defendant’s criminal history.  Judges Wiggins, Poole and Ferguson reversed, stating that “[t]he court’s conclu­sory statement of rea­sons .ÿ.ÿ. fails to clearly identify the specific ag­gravating circumstances.”  In addi­tion, the dis­trict court failed make a specific finding that the Com­mission inadequately considered those circum­stances in formulating the guidelines.  “Absent such a finding, de­parture is not per­mitted.”  U.S. v. Michel, 876 F.2d 784 (9th Cir. 1989).

 

10th Circuit allows resentencing court to deny crim­inal history departure given at original sentenc­ing. (514) Defen­dant was convicted of crack char­ges. The district court departed down­ward from criminal history level III to I, and sentenced him to 300 months. He later moved for a sentence reduction based on retro­active amend­ments to the crack guidelines. At resentenc­ing, the district court used the criminal history category of III, and imposed a reduced sentence of 292 months. Defendant argued that his amended guideline range should be based on a criminal history category of I, using the same downward criminal history departure the court originally granted. The Tenth Circuit disagreed, holding that the court properly refused to grant defendant a crim­inal history departure at resen­tencing. For purposes of a sentence modification under § 3582(c)(2), the “applic­able guideline range” and the range upon which a sen­tence is “based” is, as a matter of law, the range produced under the guidelines’ sentencing table prior to any discre­tion­ary departures. See Note 1(A) to § 1B1.10 (applic­able guideline range is deter­mined before consideration of any departure pro­vision in the Guidelines Manual or any variance.) U.S. v. Boyd, 721 F.3d 1259 (10th Cir. 2013).

 

10th Circuit rejects large departure/variance based on uncharged conduct that was not related to current offense. (514) The FBI began to investigate defendant after an adult dancer reported defendant had discussed with her in detail his desire to kidnap, rape and kill young girls. The FBI investigated defendant for several months. Although there was some evidence that he had approached a young girl in Wal-Mart, and had been interrupted by the girl’s mother, the FBI was unable to find any additional evidence in this regard. Therefore, it shifted the focus of its investigation to defendant’s illegal drug activity. He pled guilty to a single count of possession of meth­amphetamine with intent to distribute. Al­though his guideline range was 120-135 months, the district court sentenced defendant to 360 months, finding that the advisory guideline range was “vastly inadequate.” The Tenth Circuit re­versed. The horrific sexual abuse and murder that defendant either contemplated or took steps toward committing were not relevant conduct be­cause they were completely unrelated to his sale of meth. The court could not have departed under the guidelines on the basis of these facts. When a § 5K2.0 departure is based on acts of misconduct not resulting in conviction, those acts must still relate meaningfully to the offense of conviction. Section 4A1.3(a)(2) also was unavail­ing, because the uncharged conduct was not similar adult criminal conduct. Finally, in an exercise of Booker discretion, a sentencing court may not discard the advisory guideline range and impose a sentence based on evidence of the de­fen­dant’s uncharged, unrelated misconduct, whether actu­ally committed or contemplated for the future. U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007).

 

10th Circuit remands where court used wrong methodology for calculating criminal history departure. (514) Defendant had an offense level of eight and a criminal history category of VI, for a guideline range of 18-24 months. Because the court found that defendant’s criminal history category did not adequately reflect the seriousness of her past conduct, the court departed upward by extending her criminal history category to a hypothetical level IV, and calculated a sentencing range of 36-42 months. The Tenth Circuit remanded, finding the district court committed two errors in structuring the departure. First, the court should have moved to a higher offense level under category VI rather than artificially extend defendant’s criminal history to a hypothetical category IX. See U.S.S.G. § 4A1.3. Second, in creating artificial criminal history categories beyond level VI, the court made an erroneous mathematical assumption. It incorrectly assumed that criminal history categories go from one level to the next in increments of six months. Instead, although each level contains a range of six months, these ranges overlap from one level to the next. Because the court relied on a flawed and improper method in calculating the degree of upward departure, the appellate court could not be certain that the district court would have reached the same result using the correct method. U.S. v. Sims, 309 F.3d 739 (10th Cir. 2002).

 

10th Circuit remands where court failed to articulate reasons for extent of criminal history departure. (514) The district court departed upward from a range of 41-51 months to a sentence of 120 months based on an under-represented criminal history. The Tenth Circuit remanded because the district court failed to articulate its reasons for the particular degree of departure. As a result it was “unable to give the deference ordinarily accorded a district court’s decision for the degree of departure.” U.S. v. Hurlich, 293 F.3d 1223 (10th Cir. 2002).

 

10th Circuit approves grounds but not extent of upward criminal history departure. (514) Defendant’s 34 criminal history points easily exceeded the 13 points required for criminal history category VI. The court found category VI inadequate and departed upward under § 4A1.3 by seven levels, one level for each conviction in excess of those needed to place him in category VI. The Tenth Circuit found the decision to depart well within the district court’s discretion. The case was indistinguishable from U.S. v. Akers, 215 F.3d 1089 (10th Cir. 2000), which upheld a departure for a defendant who accumu­lated 15 more criminal history points than required to be placed in category VI. However, the court’s explanation of the degree of the departure was insufficient. The court did nothing more than restate the justification for an upward departure, and did not fulfill the separate requirement of stating the reasons for imposing the particular sentence. The guidelines’ cap on criminal history categories is meant to restrain both departures and the degree of departures based on the defendant’s criminal history alone. A decision to depart from category VI requires a more stringent analysis than simply counting the number of convictions in excess of those required to reach criminal history category VI, and increasing the offense level proportionately to the excess convictions. U.S. v. Walker, 284 F.3d 1169 (10th Cir. 2002).

 

10th Circuit says court need not make express findings concerning each offense level departure. (514) In the case of an upward departure from criminal history category VI, § 4A1.3 instructs the court to consider the nature rather than just the number of the defendant’s prior offenses, and to “structure the departure by moving incrementally down the sentencing table to the next highest offense level in Criminal History Category VI until it finds a guideline range appropriate to the case.” Defendant argued that this required the district court to explain why one or two offense levels was not sufficient to account for his criminal history. The Tenth Circuit held that the directive to proceed incrementally down the sentencing table does not require express findings be made concerning each incremental level. The guideline gives instruc­tions concerning the methodology for structuring the departure; it does not require that express findings be made concerning each incremental step. Nonetheless, the panel was unable to review the degree of departure because the record did not sufficiently indicate why the district court chose the degree of departure it did. Although a court need not give a mathematically precise explanation of the degree of departure, it must “specifically articulate reasons for the degree of departure using any reasonable method­ology hitched to the Sentencing Guidelines, including extrapolation from or analogy to the Guide­lines.” U.S. v. Hannah, 268 F.3d 937 (10th Cir. 2001).

 

10th Circuit rejects downward departure based on age, drug quantity, lenient sentences, and sentence dispar­ity. (514) The district court departed downward from the career offender guideline, citing (1) defendant’s young age at the time of his prior convictions; (2) the small quantities of drugs involved in the current and prior offenses; (3) the prior lenient sentences; and (4) the lesser sentences of his co-defendants. The Tenth Circuit re­versed. Defendant’s age did not make his case different from the heartland of career offender cases. Defendant committed crimes throughout his adult life, excepting periods when he was incarcerated. Nothing suggested his age at the time of his first offense had any bearing upon his likely recidivism. The district court abused its discretion in relying on drug quantity. Defendant had not two, but three prior convictions. Two were for drug trafficking and one was for armed robbery. All three crimes occurred within ten years of the current offense. The current crime involved one ounce of cocaine base, more than five times the amount required to trigger the statutory five to 40 year sentencing range. The guidelines discuss prior lenient sentences as a basis for an upward departure. See Background Commentary to § 4A1.3. Thus, at the very least, the court was required to explain why prior lenient sentences should be a ground for a downward departure here. Finally, a mere difference between co-defendants’ applicable guideline ranges will not justify a departure. See U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997). Defendant was not similarly situated to his co-defendants, who pled guilty and cooperated with the government. U.S. v. Caldwell, 219 F.3d 1186 (10th Cir. 2000).

 

10th Circuit remands where court did not explain reasons for extent of criminal history departure. (514) The district court departed up from criminal history category IV to category VI because (1) the nature of defendant’s prior offenses, which included child molesta­tion and rape; (2) defendant’s history of prompt recidivism after being released for prior offenses; and (3) California’s refusal to grant defendant parole on several occasions because he was viewed as a danger to the community. The Tenth Circuit affirmed the reasons for the departure, but remanded because the court failed to articulate sufficient findings to support the degree of the departure. The district court provided a sufficient explanation, supported by specific facts in the record, for the departure. However, the court offered little more than conclusory statements in support of its degree of departure. Nothing in the record, the PSR, or the sentencing transcript provided any explanation or methodological basis for how the district court arrived at an upward departure of two criminal history categories. Although a court need not justify the degree of departure with mathematical precision, the court is required to include in its justification “some method of analogy, extrapolation or reference to the sentencing guidelines.” U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999), overruled on other grounds by U.S. v. Atencio, 476 F.3d 1099 (10th Cir. 2007).

 

10th Circuit reverses departure for disparity, minor role, coercion, lack of criminal history, and family responsibility. (514) Defendant was convicted of drug charges. The district court departed downward based on five factors: (1) the disparity of sentences between defendant and a co-defendant; (2) defendant’s minor role; (3) the court’s finding that defendant was manipulated by her co-defendant; (4) defen­dant’s lack of criminal history; (5) defendant’s family responsibilities as the sole support for her six-year old son and partial support for her parents. The Tenth Circuit reversed. A departure based on a disparity between co-defendants is not justified when sentences are dissimilar because of a plea bargain. Defendant’s minor role is accounted for by § 3B1.2. Coercion must involve a threat of physical injury, substantial damage to property or similar injury. The only evidence was defendant’s comment that she refused to testify against her co-defendant because she was scared. Also, coercion must occur at the time of the offense. Defendant’s lack of criminal history was accounted for in criminal history category I. Defendant’s family responsibilities were not extraordinary. U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997).

 

10th Circuit rules career offender status did not over-represent criminal history. (514) Defendant was sentenced as a career offender based on two prior escape convictions. He argued that career offender status overstated the seriousness of his criminal history since the escapes were non-violent “walk-aways” from unsecured correctional facilities. The Tenth Circuit affirmed the district court’s refusal to depart downward, agreeing that defendant’s career offender status did not overstate the seriousness of his criminal history. The district court found defendant had engaged in a life of crime, and that his incarceration was necessary to protect the public from further crimes. Given this, the court properly found it had no discretion to depart downward. U.S. v. Mitchell, 113 F.3d 1528 (10th Cir. 1997).

 

10th Circuit rules court failed to adequately explain reasons for departure from I to III. (514) The district court departed from criminal history category I to III because of defendant’s involvement in 13 uncharged bank robberies. The Tenth Circuit agreed that this was a proper ground for departure, but remanded because the district court did not adequately explain why the jump from category I to III was necessary. The record showed only that the court believed that level III was an appropriate departure. It did not explain why the court felt category III was more appropriate than category I or II. U.S. v. Okane, 52 F.3d 828 (10th Cir. 1995).

 

10th Circuit holds that assault on female and DUI convictions were not “serious” dissimilar prior convictions. (514) The district court departed from criminal history category I to III based on 13 prior convictions that were not counted in defendant’s criminal history because of their age. The 10th Circuit reversed, finding they were not evidence of “serious dissimilar” criminal conduct under note 8 to § 4A1.2. First, defendant had never been given a sentence of imprisonment exceeding one year and one month, a standard used in the guidelines to set the number of points to assign a prior conviction. Little if any weight should be given to the eight misdemeanor convictions that occurred more than 30 years before defendant’s instant arrest. Defendant’s 1970 conviction for assault on a female did not, by itself, show serious criminal conduct. Under state law, assault on a female can consist of mere verbal accosting. Defendant’s four uncounted DUI convictions, while not condoned, did not qualify as “serious.” U.S. v. Wyne, 41 F.3d 1405 (10th Cir. 1994).

 

10th Circuit rejects upward departure for ten old uncounted convictions. (514) The district court departed upward based on ten previous convictions that were not counted in defendant’s criminal history because they were more than 15 years old. The 10th Circuit held that the court failed to state sufficient reasons for the departure. The convictions were clearly not related under § 4A1.2(a)(2), since they were separated by intervening arrests. Application note 8 to § 4A1.2 authorizes upward departure based on “ancient” offenses, if the court finds that the ancient offense is evidence of similar, or serious dissimilar, criminal conduct. The court did not make this finding. U.S. v. Gentry, 31 F.3d 1039 (10th Cir. 1994).

 

10th Circuit remands where court failed to explain departure from category III to VI. (514) The district court departed from criminal history category III to VI for several valid reasons and one invalid reason. The 10th Circuit remanded, because it was unclear whether, once the invalid factor was removed, the court would have made the same departure. The district court failed to explain the methodology it used to determine the extent of the departure. Merely explaining why a departure is made does not fulfill the separate requirement of stating the reasons for imposing a particular sentence. Without  an explanation of the degree of the departure, the appellate court was unable to determine whether defendant’s sentence was reasonable, or state with certainty that the same sentence would be imposed on remand. U.S. v. Yates, 22 F.3d 981 (10th Cir. 1994).

 

10th Circuit rules district court failed to ade­quately explain reasons for extent of depar­ture. (514) Defendant was placed in criminal history category VI, which resulted in an applica­ble guideline range of 24 to 30 months.  The district court departed upward and sen­tenced defendant to 40 months’ im­prisonment, based upon numerous prior offenses which were not counted in defendant’s criminal his­tory.  The 10th Circuit affirmed this as a ground for departure, but found that the dis­trict court failed to adequately explain why a 10-month departure was appropriate.  The judge merely stated that he imposed the addi­tional 10 months to protect society and be­cause criminal history category VI was inadequate.  This ex­planation did not reveal how the district court selected the degree of departure.  If pos­sible, the court should have ex­trapolated from other guideline levels or made an analogy to closely-related circumstances or conduct ad­dressed by the guidelines.  U.S. v. Kalady, 941 F.2d 1090 (10th Cir. 1991).

 

10th Circuit affirms prior lenient sentences and threat to public safety as grounds for up­ward departure. (514) The district court de­parted upward from a guideline range of 15 to 21 months and sentenced defendant to 38 months im­prisonment.  The departure was based on many factors, in­cluding the fact that defendant had re­ceived lenient treat­ment for two prior felonies and his threat to public safety.  The 10th Circuit affirmed these two reasons as grounds for the departure.  Guide­line § 5K2.14 states that a defen­dant’s criminal history may be underrepresented when the defendant had pre­viously received an extremely lenient sen­tence for a seri­ous of­fense.  Defendant, age 23, was already on proba­tion for two previous felony convictions.  He was a threat to public safety because he collected and sold “anti-per­sonnel” weapons and was building highly volatile bombs in a residential area.  Defendant believed he was selling weapons to an illegal paramilitary orga­nization.  How­ever, the court was unable to determine whether the de­gree of de­parture was reasonable since the district court failed to fol­low the procedure previ­ously outlined in U.S. v. Jackson, 921 F.2d 985 (10th Cir. 1990).  U.S. v. Stumpf, 938 F.2d 172 (10th Cir. 1991).

 

10th Circuit affirms upward departure based on defen­dant’s repeated robberies. (514) Defen­dant’s criminal history included four sep­arate and distinct bank rob­beries dating back to 1981. The cases were consolidated for sen­tencing purposes.  The district court departed upward and sentenced defendant as a career offender, after giving defendant a two level re­duction for accep­tance of responsibility.  The 10th Circuit affirmed, find­ing that the district court’s departure was not unreason­able.  Be­fore going to jail in 1981, defen­dant “repeatedly” engaged in bank robbery.  Within a year of his release, he began robbing banks again.  Had each of his offenses been counted as separate crimes, he would have quali­fied as a career offender.  U.S. v. Williams, 922 F.2d 578 (10th Cir. 1990).

 

10th Circuit reverses unguided criminal his­tory depar­ture. (514) Defendant pled guilty to aiding and abet­ting wire fraud.  Defendant had seven prior felony fraud con­victions, as well as numerous misdemeanor convic­tions for fraud offenses, placing him in criminal history cate­gory IV.  The district court departed upwards from a guideline range of 15-21 months and sentenced de­fendant to 40 months in prison.  The 10th Circuit re­versed.  Although the ag­gravating circumstances of de­fendant’s past were not adequately con­sidered by the guide­lines, the unguided departure was held to be un­reasonable.  On remand the district court was or­dered to use a higher criminal history category as a guide for de­parture, and to artic­ulate reasons for degree of depar­ture.  U.S. v. Harris, 907 F.2d 121 (10th Cir. 1990).

 

10th Circuit, en banc, reverses where district court failed to explain reasons for extent of departure. (514) The dis­trict court departed upward from 10 to 60 months based on several previous convictions which were excluded from de­fendant’s criminal history calcula­tion, the le­nient treatment that defendant had received for his previous convictions, and the relation­ship be­tween drugs and violence in defendant’s criminal history.  In this en banc rehearing of  U.S. v. Jack­son, 903 F.2d 1313 (10th Cir. 1990) the 10th Circuit re­versed, finding that the dis­trict court had failed to provide any justifica­tion for the extent of its departure.  The district court failed to find analogous levels and princi­ples in the guidelines to guide its departure, and did not clarify whether the departure was based upon aggravating cir­cumstances not con­sidered by the Commission, or an underrepre­sented criminal history, or both.  Moreover, the court “apparently abandoned the Sentenc­ing Guide­lines entirely by imposing a sentence beyond the range appropriate to [criminal his­tory] category VI,” which is appropriate only in “extraordinary cir­cumstances.”  U.S. v. Jackson, 903 F.2d 1313 (10th Cir. 1990), reheard en banc, 921 F.2d 985 (10th Cir. 1990).

 

10th Circuit holds that “narrowly missing” ca­reer of­fender status is no basis for departure. (514) The dis­trict court de­parted upward, cit­ing as one reason for the departure that the defendant had “narrowly missed” qualify­ing for career offender status.  The 10th Circuit va­cated the sentence, holding that “one is either a career offender or one is not.”  No allowance is made for “close cases.”  U.S. v. Hawkins, 901 F.2d 863 (10th Cir. 1990).

 

11th Circuit rejects downward departure based on minor nature of prior crimes and entrapment. (514) Defendant qualified as a career criminal based on several prior drug convictions. The district court found that defen­dant’s criminal history over the last 15 years dealt only with small transactions for cocaine, and on that basis concluded that his criminal history category significantly over-represented the serious­ness of the offense. The Eleventh Circuit held that the departure was error under U.S. v. Rucker, 171 F.3d 1359 (11th Cir. 1999). Rucker held that the district court had erred by departing from § 4B1.4, the armed career criminal guide­line, based on its conclusion that even though the defendant’s prior convictions qualified as “serious drug offense,” those prior convictions were “very minor” because they actually involved only small amounts of drugs. The fact that the government aggregated separate quantities of crack cocaine by buying small quantities on four separate occasions did not constitute sentencing manipula­tion. U.S. v. Govan, 293 F.3d 1248 (11th Cir. 2002).

 

11th Circuit rejects downward departure in offense level based on seriousness of criminal history. (514) Defendant, convicted of drug crimes, qualified as a career criminal under § 4B1.1. In departing downward by six offense levels, the district court found that defendant’s criminal history category significantly over­represented the seriousness of his criminal history, but that it could not depart under § 4A1.3 because § 4B1.1 mandates that a career offender be in Category VI without regard to the seriousness of the prior offenses. The Eleventh Circuit reversed, finding that (1) criminal history departures must be under § 4A1.3, not § 5K2.0; (2) § 4A1.3 departures must proceed on only the horizontal axis and not the vertical axis; and (3) the facts did not support the court’s conclusion that Category VI significantly overrepresented the seriousness of defendant’s criminal history. The court abused its discretion in finding that the seriousness of defendant’s criminal history was overrepresented. First, the court relied on the fact that except for one robbery in 1994, defendant’s criminal history included four cocaine possessions and certain non-violent offenses. But defendant also had a fifth drug conviction involving possession with intent to deliver. This fifth drug conviction, combined with defendant’s robbery conviction, is what made him a career offender. Second, even without the career offender designation in § 4B1.1, defendant’s 19 criminal history points easily placed him in Category VI. Third, § 4A1.3 is concerned with the pattern of timing of prior convictions, and not with the facts of the individual prior crimes as relied upon by the court. U.S. v. Smith, 289 F.3d 696 (11th Cir. 2002).

 

11th Circuit bars criminal history departure based on relevant conduct considered in offense level calculation. (514) In 1988, defendant pled guilty to filing a false tax return for the 1983 tax year. Pursuant to the plea, he agreed to pay the income tax liabilities for that year within a “reasonable time.” Despite this agreement, from 1988 to 1997, defendant failed to make any payments and instead transferred assets out of the country to prevent their seizure. He was convicted of willfully attempting to evade the payment of income taxes for the years 1981 through 1988. In determining defendant’s criminal history category, the district court could not count defendant’s 1988 conviction because that conviction was for conduct considered “part of the instant offense” and had been included as relevant conduct on the current conviction. See Note 2 to USSG § 4A1.2. However, the court found it could consider the conviction for purposes of departing upward under § 4A1.3. The Eleventh Circuit reversed, ruling that a court cannot make a criminal history departure based on criminal conduct that also constituted relevant conduct that the district court considered in calculating the base offense level for the offense of conviction. Accordingly, under the facts of this case, the district court erred in departing upward to criminal history category III based on the 1988 conviction. U.S. v. Hunerlach, 258 F.3d 1282 (11th Cir. 2001).

 

11th Circuit says court may not make criminal history departure based on serious­ness of aggravated felony. (514) Defendant pled guilty to illegal re-entry by a deported alien. The district court applied a 16-level aggravated felony enhance­ment under § 2L1.2(b)(1)(A) based on a 1992 drug conviction. Defendant requested a downward departure under § 4A1.3, arguing that the 1992 drug conviction overstated the serious­ness of his criminal conduct, since it was based on a $21 sale of cocaine base. The Eleventh Circuit held that a sentencing court does not have the authority to depart under § 4A1.3 when the sentence has been increased under § 2L1.2(b)(1) (A) for a previous aggravated felony. Although §§ 4A1.3 and § 2L1.2(b)(1)(A) both deal with a defendant’s past criminal acts, they do so for different reasons. However, the district court did have the authority under note 5 to § 2L1.2 to evaluate the seriousness of the aggravated felony and to depart downward if: (A) defendant only had one prior felony conviction; (B) the offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed did not exceed one year. Defendant did not qualify under note 5 because he had been convicted of more than one prior felony. The district court’s “gut feeling” that this was a “terribly harsh sentence” did not provide a basis for departure. U.S. v. Alfaro-Zayas, 196 F.3d 1338 (11th Cir. 1999).

 

11th Circuit reverses downward departure that was based on belief defendant was not guilty of prior conviction. (514) The district court departed downward from the career offender classification based on its view of the practices of the local court where defendant had been convicted of aggravated assault and the circumstances surrounding his conviction. The Eleventh Circuit reversed, holding that the district court improperly departed based on its view that defendant was not guilty of the aggravated assault because defendant received lenient treatment for that conviction. Several times in the transcript, the court indicated its belief that defendant was not guilty of the aggravated assault charge, but pled guilty because the local court system made it easier to plead guilty than to protest his innocence. The court essentially engaged in a collateral attack on defendant’s aggravated assault conviction, which was improper. Collateral attacks on prior convictions are only allowed in one narrow circumstance—when the conviction was obtained in violation of the defendant’s right to counsel. Defendant’s lenient treatment for the aggravated assault conviction was also not grounds for reducing the present sentence. On the contrary, § 4A1.3 says an upward departure may be appropriate where the defendant had previously received an extremely lenient sentence. U.S. v. Phillips, 120 F.3d 227 (11th Cir. 1997).

 

11th Circuit says failure to give notice of possible criminal history departure was plain error. (514) The PSR characterized de­fendant as a career offender based on two prior robbery offenses.  No grounds for de­parture were identified.  At sentencing, the district court accepted defense counsel’s ar­gument that the two offenses were “related” and therefore defendant did not qualify as a career offender.  However, the court then de­parted upward, finding that consolidating the two offenses would under represent defen­dant’s criminal history score.  The 11th held that this failure to give defendant advance no­tice of intent to depart upward violated Burns v. U.S., 111 S.Ct. 2182 (1991).  It was not enough that defendant had an opportunity to speak to the issue of upward departure and that he did not ask for additional time to ad­dress the issue or request a continuance.  The failure to give such notice was plain er­ror.  Defendant was sentenced only 15 days after Burns and it was likely that neither counsel nor the court was aware of it.  U.S. v. Jones, 1 F.3d 1167 (11th Cir. 1993).

 

11th Circuit reverses criminal history de­parture because reasons did not relate to past criminal conduct. (514) Defendant as­saulted federal agents attempting to arrest him for credit card fraud.  The district court departed upward from criminal history cate­gory I to V because (1) it was likely the actual loss involved in the offenses was greater than $18,000, based on the number of credit cards involved, (2) defendant’s attempt to flee custody demonstrated a high likelihood of re­cidivism, (3) the circumstances surrounding the arrest were particu­larly egregious, and (4) defendant “beat the tar out of two Secret Ser­vice agents.”  The 11th Circuit re­versed, since the cited reasons all related to the instant of­fense, not defendant’s past criminal conduct.  Sec­tion 4A1.3 is limited to considering whether the criminal history category under­states the seri­ousness of past criminal his­tory or the likelihood of recidivism.  No mat­ter how proba­tive of recidivism a factor is, it cannot jus­tify a depar­ture unless it relates to past criminal con­duct.  U.S. v. Adudu, 993 F.2d 821 (11th Cir. 1993).

 

11th Circuit reverses departure for failure to com­pare defendant’s crimi­nal his­tory to others. (514) The district court departed upward to criminal his­tory category II based on (a) defendant’s admitted in­volvement in 10 pre­vious smuggling offenses, and (b) an out­standing Canadian arrest warrant.  The 11th Circuit remanded for resentencing because the dis­trict court failed to state on the record how defen­dant’s criminal history compared with those classi­fied in criminal history cate­gory II.  A district court, when departing un­der section 4A1.3, should use as a reference the guideline range applicable to a defen­dant with a higher or lower criminal his­tory cate­gory.  The district court failed to follow this procedure.  U.S. v. Huang, 977 F.2d 540 (11th Cir. 1992).

 

11th Circuit rejects downward departure for own­ing a business, supporting minor children and mother, and trouble-free past. (514) The district court de­parted down­ward because defendant (a) had a business which could “go under” if she was not there to run it, (b) supported her two minor chil­dren and her mother, and (c) had never been in trou­ble in the past.  The 11th Cir­cuit found that none of these factors, either individually or in combination, were sufficiently ex­traordinary to overcome the strong presump­tion against downward departures on the ba­sis of offender characteristics es­tablished in section 5H of the guidelines.  Moreover, de­fendant’s trouble-free past was an inappro­priate ground for departure because her placement in criminal history category I al­ready reflected the absence of prior brushes with the law.  A departure below the lower limit of the guideline range for a category I of­fender on the basis of ade­quacy of criminal history cannot be appropriate.  U.S. v. Mogel, 956 F.2d 1555 (11th Cir. 1992).

 

11th Circuit rules invalid conviction could not be basis for departure because defen­dant did not re­ceive notice. (514) The dis­trict court placed defendant in criminal his­tory cate­gory VI, which was only applica­ble if the court in­cluded in defendant’s criminal history a prior conviction which the court had determined was constitutionally in­valid.  The gov­ernment contended that the district court in­tended to depart from the criminal history category.  The 11th Cir­cuit ruled the court’s placement of defendant in category IV could not be justified on departure grounds be­cause defen­dant did not re­ceive notice of the departure.  A court may consider criminal conduct underlying an invalid convic­tion in making a depar­ture, but the court must, un­der Burns v. U.S., 111 S.Ct 2182 (1991), give the defendant notice and an op­portunity to comment before it departs up­ward.  Here, the district court gave no indi­cation that it in­tended to depart nor did it ex­plain its reasons.  U.S. v. Cornog, 945 F.2d 1504 (11th Cir. 1991).

 

11th Circuit holds district court may not au­tomatically de­part because defendant was al­most a career offender. (514) Defendant would have qualified for career of­fender status except that his two prior felony drug crimes, which oc­curred at a different time and place, were con­solidated for sentenc­ing.  The district court found that if it could not sentence defendant as a career offender, then it would depart upward and sentence de­fendant to 262 months because defendant’s criminal history was equivalent to that of a career offender.  The 11th Circuit re­manded for resentencing, finding the dis­trict court failed to ascertain defendant’s appropri­ate offense level, criminal history category, or guideline range prior to making the departure.  Although a de­parture might well be justified, a departure must be con­sidered within the frame­work of the guidelines and jus­tified by degrees.  A departure to the ca­reer offender level can only be made after consider­ation of several in­termediate levels.  “What the court cannot do is hold that because the defendant almost falls within the defi­nition of career of­fender .ÿ.ÿ. it automatically will treat him as such.”  U.S. v. Delvecchio, 920 F.2d 810 (11th Cir. 1991).

 

11th Circuit rejects downward departure based on likeli­hood of recidivism. (514) De­fendant fell into criminal history category I.  The district court found a downward de­parture was justified because “the court is confident that de­fendant will not get involved again in any type of criminal activity.”  The 11th Circuit reversed, finding that likelihood of recidivism was a factor consid­ered by the Sentencing Com­mission in the formulation of the criminal history categories.  Although the Sen­tencing Commission recognized that it could not guar­antee that likelihood of recidivism would have been ade­quately considered in all cases, guide­line § 4A1.3 provides that category I is designed for a first offender with the lowest risk of recidivism.  Therefore, a district court is not authorized to consider risk of recidivism as a mitigat­ing factor for a defendant in category I.  U.S. v. Russell, 917 F.2d 512 (11th Cir. 1990).

 

11th Circuit rejects downward departure based on likeli­hood of recidivism. (514) De­fendant fell into criminal history category I.  The district court found a downward de­parture was justified because “the court is confident that de­fendant will not get involved again in any type of criminal activity.”  The 11th Circuit reversed, finding that likelihood of recidivism was a factor consid­ered by the Sentencing Com­mission in the formulation of the criminal history categories.  Although the Sen­tencing Commission recognized that it could not guar­antee that likelihood of recidivism would have been ade­quately considered in all cases, guide­line § 4A1.3 provides that category I is designed for a first offender with the lowest risk of recidivism.  Therefore, a district court is not authorized to consider risk of recidivism as a mitigat­ing factor for a defendant in category I.  U.S. v. Russell, 917 F.2d 512 (11th Cir. 1990).

 

11th Circuit holds downward departure can­not be based upon lack of actual violence in career offender’s prior con­victions. (514) The district court determined that even if defendant should be classified as a career offender, it would depart downward since defendant’s prior “crimes of violence” did not involve actual vio­lence and no injury re­sulted.  The 11th Circuit rejected this as a ground for a downward de­parture, finding that the Sentencing Commis­sion considered the distinction be­tween the use of force and the lesser threat of force when it formulated the career of­fender guidelines.  The district court also departed on the grounds that sen­tencing defendant as a career offender would result in an excessive sentence.  The 11th Circuit re­jected this as a ground for de­parture, finding that a court cannot de­part be­cause it believes a sentence is excessive.  U.S. v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990).

 

11th Circuit reverses a consecutive term of 10 years for committing a felony while on release. (514) Under § 2J1.7 of the guidelines, commission of an offense while on release is assigned a base offense level of 6, and 6 more levels are added if the offense committed while on release was punishable by a term of 15 years or more, as was the case here.  With a criminal history cat­egory III, the defen­dant should have been sentenced to serve a consec­utive term of 15-21 months in addition to his 20 year sentence on the CCE charge.  Absent rea­sons for departure, the district court improp­erly im­posed a ten year consecutive sentence under § 3147.  Thus, the sentence was va­cated and re­manded so that the district court could determine the appro­priate sentence to be imposed in connection with his com­mission of the felony while on release.  U.S. v. Martell, 906 F.2d 555 (11th Cir. 1990).

 

D.C. Circuit says failure to make reductions were not plain error where defendant would still face mandatory minimum. (514) Defendant claimed that the district court erred by failing to explain its reasoning for rejecting his request for a four-point minimal participant reduction under § 3B1.2(a) and a downward criminal history departure under § 4A1.3. However, not only did defense counsel fail to raise these claims at sentencing or object to the district court’s rulings, she remained silent even after the government brought up the § 3B1.2 issue at the close of the hearing. Counsel’s reference to defendant’s role in the conspiracy and to his criminal record in the course of requesting a “time-served” sentence was insuf­ficient to invoke the specific guideline provisions defen­dant now raised on appeal. The D.C. Circuit found no plain error because defen­dant could not “show a reasonable likelihood that the sentencing court’s obvious errors affected his sentence.” Regardless of any vertical base-offense level adjustment or horizontal shift in defendant’s criminal history category, defendant still would have faced a statutory mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b) (1)(A). More­over, the district court found that defendant was in “the middle” of a larger conspiracy, which meant that he was more than a minimal or minor participant in the smaller conspiracy for which he was being held criminally responsible. In re Sealed Case, 349 F.3d 685 (D.C. Cir. 2003).

 

D.C. District Court rejects departure from career offender guideline. (514) Before holding the career offender guidelines uncon­stitutional, the D.C. District Court found no grounds for a downward departure, even though de­fendant’s three prior drug offenses were relatively minor.  First, the three of­fenses were one more than necessary to trig­ger the career offender guideline.  Moreover, one of these convictions occurred less than a year before the in­stant drug offense and each of the prior offenses in­volved distribution of either heroin or cocaine.  Sec­ond, the claim that the prior offenses were the prod­uct of a drug addiction was not substantiated.  Addi­tionally, section 5H1.4 specifically states that drug dependence is not a ground for depar­ture.  Never­theless, the court held the career offender guidelines unconstitutional.  U.S. v. Spencer, 817 F.Supp. 176 (D.D.C. 1993).

 

D.C. Circuit reverses upward departure where some of the grounds relied on were improper. (514) The district court departed upward because of (a) defen­dant’s repeated illegal entries into the United States, (b) his extensive criminal history, (c) his nu­merous prior arrests, (d) the fact that some offense were committed while on parole, (e) obstruc­tion of justice based upon his past use of aliases, and (f) the fact that defendant had never “done anything con­structive” in the United States.  The D.C. Circuit re­manded for resentencing, ruling that a departure based upon defendant’s prior arrests, parole status or past use of aliases was prohib­ited by the guide­lines.  Defendant’s apparent failure to contribute any­thing to society was irrelevant.  The first two factors may have been appro­priate grounds, but the sentence could be af­firmed only if the reliance on the improper ground was “harmless” under the three-part test adopted in U.S. v. Jones, 948 F.2d 732 (D.C. 1991).  Here, the error was not harm­less because there was no indication of the weight the district court gave the various de­parture factors.  U.S. v. Molina, 952 F.2d 514 (D.C. Cir. 1992).

 

D.C. Circuit reverses upward departure based upon prior juvenile convictions which were ex­cluded from criminal his­tory calculation. (514) Defendant had five juvenile convic­tions which were excluded from the calculation of his crimi­nal history score under guideline § 4A1.2.  The D.C. Circuit agreed with de­fendant that the sentencing commis­sion had adequately considered the significance of prior ju­venile sentences.  Therefore, juvenile sen­tences which are not included in the criminal history calculation under § 4A1.2(d) may not be the basis for a departure under § 4A1.3.  The only two exceptions are in Appli­cation Note 8:  if the juvenile sentence is evi­dence of similar misconduct or the defendant receives a substantial portion of his income from criminal livelihood.  The district court properly considered the appar­ent leniency of the sentence defendant received for his prior adult conviction for sexual abuse.  But the le­niency of prior juvenile sentences which were excluded from his crimi­nal history score was not a proper ground for depar­ture.  U.S. v. Samuels, 938 F.2d 210 (D.C. Cir. 1991).

 

D.C. Circuit remands because district court failed to ex­plain why a one-level departure was inadequate. (514) De­fendant fell within crimi­nal history category III, but the dis­trict court departed upward and sentenced him as if he were in criminal history category VI.  The D.C. Circuit remanded for resentencing.  Before departing by two levels, the district court should have explained why a one-level criminal history departure was inadequate.  Moreover, the court’s two level departure may have been inadvertent.  The presentence re­port initially recommended criminal history level IV for de­fendant, but it was amended to place defendant in level III.  The district court may have be­lieved that defendant re­mained in category IV and that it was only departing upward by one level.  U.S. v. Taylor, 937 F.2d 676 (D.C. Cir. 1991).

 

D.C. Circuit reverses departure because sen­tencing court did not consider next higher criminal history cat­egory. (514) The sentenc­ing court determined that criminal history cat­egory V inadequately represented defendants’ criminal history and departed upward from the Guidelines.  The D.C. Circuit reversed, holding that a sentencing judge must consider an up­ward adjustment to a higher criminal history category before imposing a higher sentence.  The case was remanded with instruc­tions to (1) identify the correct guidelines category, (2) consider whether an upward adjustment in the criminal history category is adequate and (3) if an adjustment was inadequate, state why a sentence longer than one al­lowed by the top criminal history category was appropri­ate.  U.S. v. Allen, 898 F.2d 203 (D.C. Cir. 1990).

 

Virginia District Court holds that there can be no criminal history downward departures for career of­fenders. (514) Defendant, a career offender, argued that his criminal history cate­gory overstated the seriousness of his past criminal conduct and that the district court should de­part downward under guidelines § 4A1.3.  The Eastern District of Virginia rejected this position, finding that the language in the career offender section strongly sug­gested that the Sentencing Commission did not intend to permit downward criminal history depar­tures for career offenders.  Moreover, Congress in­tended that “career offenders .ÿ.ÿ. re­ceive a sentence of imprisonment at or near the maximum term authorized.”  U.S. v. Saun­ders, 743 F.Supp. 444 (E.D. Va. 1990).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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